GUILTY or NOT GUILTY?
Concerning the first selection of women jurors in the history of San Diego’s courts, this year of 1965 is the golden anniversary; but the gold is somewhat tarnished.
In 1915, in criminal case No. 23984, the charge against the defendant was Grand Larceny, and a ring was offered and received in evidence as “People’s Exhibit A.” Of course a gold ring also is the symbol of a circus merry-go-round; and case No. 23984 appropriately was the start, for all female jurors (and for not just a few lawyers and judges), of a two-year ride of horse-laughing ups and downs on the courthouse carousel.
In the above-mentioned case the jury may have liked the ring, but not the ring of the prosecution’s evidence. Forty-one minutes after receiving the court’s instructions the members returned into their box with the verdict: Not Guilty. The defendant forthwith was exonerated; but not the women jurors. It has been made to appear that they were the only ones in the case engaged in an illegal activity! (See p. 18)
LIQUOR WON’T LICK ‘ER
On September 8, 1914 a committee of three women who represented the local W.C.T.U. urged upon County Supervisors the desirability of having women on juries. At that time the law provided that annually the supervisors should select a list of persons to serve as trial jurors after receiving from the court an order designating the number of such persons believed to be required during the ensuing year.1
The supervisors refused the W.C.T.U. request. At common law only men could be jurors.2 The ladies also were reminded that jurors who could not agree were frequently locked up together for the night; and that domestic complications were probable if both men and women served on a mixed jury.3
In 1914 there were two or three women lawyers in San Diego County,4 and a former local lady lawyer had served several years as a deputy district attorney in Los Angeles.5 Women were eligible to be Judges; or to engage in any lawful business, vocation, or profession; and since October 10, 1911 by constitutional amendment in California they had possessed the right to vote. Furthermore, the Fourteenth Amendment of the Constitution of the United States provided that, “No state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The Supreme Court of the United States already had held that the 14th Amendment was violated by a state law permitting a negro to be tried before a jury from which his race was excluded.6
How about women being tried by a jury from which women were excluded by law?
The ladies of the public welfare committee of the W.C.T.U. (Women’s Christian Temperance Union) were fully convinced, as they departed from the meeting of the County Board of Supervisors, that the latter’s discrimination against them was unchristian, intemperate and closed shop. They also honestly believed that the San Diego District Attorney, who was the legal adviser of those supervisors, was intoxicated with the spirit of masculine domination; that he clearly was “all wet” and should be replaced in the fall election by a candidate who was a “Dry.” To Harry S. Utley, the incumbent D. A., some of the letters W.C.T.U. suddenly sounded suspiciously like what the ladies were saying to him, “We’ll See T’ You.”
And they did!
ARE WOMEN PEOPLE?
At the beginning of 1915 H. W. Mahoney took over the duties of district attorney from the capable naturalized little Englishman who was reputed to like his Guinness at room temperature. The Board of Supervisors even drew a bead on Utley’s political bier, and on December 21, 1914 fired in a request to the office of district attorney for an official opinion as to whether women could be selected for jury duty.7 On January 7, 1915 the opinion was presented to the Board. With dry humor and tongue in a wet cheek it was said by the new D.A. O.K. W.C.T.U.
The securing of the above information must be credited to County Counsel, Bertram McLees, Jr., who graciously assisted in collecting the official record. Retired Superior Court Judge Clarence Harden was a deputy in Utley’s office prior to 1915, and remembers the happenings at first hand.
It soon developed that the lovable and fighting-Irish Mahoney really disliked Utley for being an Englishman more than for his being somewhat anti-W.C.T.U. in conduct. After several spirited months in his office the Dry-supported D. A. was persuaded to resign; and Spencer M. Marsh was appointed in his place. Now Marsh was truly a dry “Dry,” and not the kind of a double dry employed in making a dry martini. Furthermore, Marsh was the deputy under Mahoney who actually wrote and signed the opinion of January 7, 1915 saying, “in my judgment the fact that (one) is a woman does not disqualify her to be selected and to serve as a juror.”
The argument was that the code of civil procedure required as qualifications for jurors only that the Supervisors select “persons suitable and competent.” Said the district attorney’s opinion, “This seems to give to the Super-visors full discretion in deter-mining what persons are “suitable” under all the circumstances.”
Marsh didn’t commit himself as to whether women are or are not “persons”; but the legislature finally had to change the word “persons” to “men and women” in several code sections before women were held to be eligible for jury duty. But the legislature also, and at the same time, changed the word “men” in other code sections to “persons.” Further comment about the ridiculously conflicting legal reasoning on this subject will be made in one of the later footnotes herein.
In co-operation with the history committee of the local Bar Association, County Clerk R. B. James, and his chief deputy R. W. Candee, and Mrs. Mary Louise Watson of his microfilm and archives department have researched the jury records for several years after women became entitled to vote in 1911.
There are no names of women on the annual jury lists until 1915, which was immediately following the Mahoney-Marsh opinion advising the County Supervisors that women were not disqualified to serve. In the panel of that year there were 80 persons, of whom six were women.
Although the panel was selected in January, there were no women actually chosen for jury service until case No. 23984 which began on September 29, 1915. The reason was simple; lawyers didn’t care to try cases before members of the gentler sex, and excused them by peremptory challenge if necessary. In September, 1964 attorney Arthur F. H. Wright, who was prominent as a trial lawyer in San Diego in 1915, related with a smile the story of the female frustration as time and again one or more of the six lady hopefuls was denied the opportunity of earning her share of courthouse boodle, namely, the payment of two dollars per day, for hearing the pros and cons about promises and con men.
The three women who sat on the first mixed superior court jury in this county were Genevieve G. Carpenter, Nancy J. Eastin, and Phoebe L. Thompson. The case lasted two days. The project of discovering more data about these ladies is still under way, but concerning one of them, Mrs. Nancy J. Eastin, something is known.
Fifty years ago the Eastins lived right across the street from this writer and his parents. The son, Fred Eastin, and I fought and played together for two or three of our grammar school years. For several decades I kept a certain poem or jingle written by Mrs. Eastin for the amusement of her son and his crony. Unfortunately for the present study it dealt with baseball and not with women jurors. There was sufficient cleverness to the verse, however, to permit the guess that Mrs. Eastin was a capable and educated woman.
In fact, Mrs. Eastin’s rhyme reasonably was subjected to less attack than that of the district attorney’s opinion which permitted her to be a juror. That opinion, apparently, had neither rhyme nor reason.
BOGGED IN MARSH
Although several cases, succeeding the one just mentioned, appear upon the local records, indicating that ladies were selected for jury duty during and after 1915, it became evident to Mr. district attorney Marsh that his opinion was over its head in trouble. Other Californians in similar office didn’t agree with its conclusions, and neither did the State’s Attorney General.
Parenthetically it must be said that the present district attorney, Mr. Don Keller, assisting the bar history committee, secured the gratuitous services of Mr. Rodney Sprigg, retired son of an early-day prominent lawyer of San Diego, to labor for scores of hours in the unearthing of all possible data about the local district attorney’s office since its establishment in 1850.
Mr. Sprigg located, among other items, a file of Hon. Spencer M. Marsh’s personal papers, and in them was the following letter to him from Hon. U. S. Webb, the Attorney General of California.
Office of Attorney General
San Francisco, December 16, 1916 Hon. S. M. Marsh
San Diego, California Dear Sir:
In compliance with your request of the 13th inst., I am pleased to hand you copy of opinion of this office relative to the qualification of women as jurors in this state, rendered under date of April 25, 1912, No. 2271, to Hon. Eugene S. Wachhorst, District Attorney of Sacramento, County.
Since the rendition of said opinion attempts have been made to amend section 198 of our Code of Civil Procedure, which designates those persons who are competent to act as jurors, in such manner that women should be expressly included, but all of such attempts have proved unavailing and the conclusion which we have reached upon this question is not altered by the law in its present condition.
Very truly yours,
[s] U. S. Webb
The state officer’s opinion about women as jurors, referred to in the above letter, is set forth in six pages. It points out that the California code in several different sections defines a jury as “A body of men . . .” and that at common law those words meant men only; that the constitutional guaranty of the right of trial by jury is everywhere recognized as only the right to a jury as it existed at common law; that the legislature would have to change the law expressly if it were intended that women be eligible for jury duty.
It is of passing interest that the above opinion, written in 1912 (but sent to Mr. Marsh in December, 1916), was prepared by “J. T. Nourse, Deputy,” who later was superior court judge in San Francisco, and thereafter a Justice and Presiding Justice from 1919 until 1957 on the District Court of Appeal.
Although the jury system has many critics, its defenders believe that its faults are greatly overbalanced by much inherent good. The system gives experience in public affairs to many persons, and teaches a people to think of the important business of justice as its own. The jury stands between an otherwise somewhat powerless citizenry and the possible overbearing severity of the legislature or courts. As an English judge recently wrote, the jury is “more than an instrument of justice … it is the lamp that shows that freedom lives.”8
On September 8, 1914, however, when San Diego’s Supervisor Fisher told the ladies of the W.C.T.U. about certain reasons why women should not be on a jury, historically speaking he was not talking through his hat.
Petty juries are a descendant of even more impossible fact-finding systems of only a few centuries ago when justice was determined by the outcome of open physical battles and brawls. The medieval mind expected God to give victory to the cause that was in the right. It still expected the same divine intervention when it locked up twelve quarreling jurymen and demanded a unanimous verdict, — and fast.
In order to hasten such agreement, even until quite recent times, the men were locked up even in the most bitter winter weather without food or water, fire or light. Any juryman who carried in so much as a crumb of food was subject to severe penalty. Such conditions of emotional strain and physical duress never were intended for women, either then or now. Centuries-old theories of jury deliberation had to be revised. It would not even be decent for members of the feminine sex to be thrust into such impossible blacked-out midnight melees.
The remnants of this problem were disturbing the authorities in Southern California even after women received legislative sanction to engage in jury duty. In San Bernardino a woman was ‘charged with a crime, and the sheriff summoned only women for jury duty. As stated in the appellate court decision in 1919 “his reason for omitting men from the jury was that the county had no accommodations for keeping a mixed jury over-night, and, in his opinion, a mixed jury ‘would not be nice, provided they were held over and they had night sessions.'” The court upheld conviction by the all-woman jury, but there was an implied recognition that such procedures could not be tolerated indefinitely.
Supervisors realized that only a bungling Board would install a bundling board. They called for the drawing board, and separate rooms with board. Thence forward the instructors of juries, as professors of legal knowledge, were to instruct in a co-educational institution with integrated sexes but segregated dorms.
Hon. Spencer M. Marsh was an experienced lawyer, a gentleman, a conscientious citizen, and a long-time acquaintance of this writer. Before coming to San Diego he had served as a district attorney and state senator in Wisconsin. It is pleasing to give acknowledgment here of this fine man’s numerous instances of gracious conduct toward me, both as a high school fellow-student of his own son, and later as a young lawyer when Judge Marsh sat with distinction on the local superior court bench.
No just criticism can be made of the Mahoney-Marsh opinion about women jurors. In the first place the author of it just may have been right; and in any event it is not shameful to guess incorrectly as to what upper courts later will decide. Even Blackstone’s Commentaries contain many errors, and certain persons believe the dissents of Holmes and Brandeis expressed the real existing law. If lawyers knew all the law, there wouldn’t be a lawsuit in the land.
It developed that the California courts decided to follow the Webb-Nourse interpretation of the law about women jurors. In 1917 the District Court of Appeal released from custody an alleged seller of beer that had too high an alcoholic content. The sustained defense was that the accused had been indicated by a grand jury upon which there were several women.9
Upon such controversial sands are many legal precedents builded! Suppose the defendant had been charged with a particularly heinous rape or murder, instead of an offense considered by some citizens to be an expression of outrageous legislative paternalism. What then?
In any event the legislature of California in 1917 again amended certain code sections attempting to permit women to serve as grand and petty jurors. As a conclusion, in 1918 a defendant felon who had been convicted by a jury consisting in part of women, heard his conviction affirmed by the State Supreme Court. Women now could serve on juries! The matter was ended; but not clearly and smoothly. If the issue had involved another unpopular indictment of a mere beer jerk, the decision still might have gone the other way.
In its decision the California Supreme Court recognized that the federal 14th Amendment was insufficient to compel the use of women as jurors, because the United States Supreme Court, itself, had so said. It then came face to face with the California constitution which secured the right of jury trial to all; and with the recognized fact that this meant “the right to a trial by a jury as known at common law.” That was an all male jury. Furthermore, legislatures can’t amend the constitution.
California’s highest court had to blink twice and hold that two other constitutional amendments having nothing to do with juries, namely, those giving to women the right to vote, and to engage in any lawful business, vocation, or profession, had by inference amended the constitutional requirement of an all male jury.10
Such a decision is enough to make one with lost dentures gnash his missing teeth. The business and vocation section had been in the constitutional most forty years, since 1879, and the woman’s suffrage provision since 1911. The inferred amendment of the jury section, therefore, had occurred, if at all, before Marsh wrote his 1915 opinion, and before Nourse wrote his in 1912. Therefore, perhaps Marsh was right for the wrong reason, and Nourse was wrong-not for the right reason, but for whatever reason is left!
The reader must remember, however, that the conclusion from the analysis just made is only a sort of good sense. It never was good law in California! The law clearly was and is that women could not sit on juries before July 28, 1917, and that thereafter they could. Additional comments about the legal reasoning in the women-as-jurors issue is given in the footnote. 11
GUYS AND DOLLS
Since Harry S. Utley’s advisory opinion about women jurors was the one adopted by the state’s highest legal authorities, it is pleasing to note that he ran again for district attorney in 1918 and was elected in a contest with the incumbent appointee, W. F. Schuermeyer. Marsh had been appointed superior court judge, replacing Hon. W. R. Guy who expired in July, 1917 at practically the identical time that the monopoly of all guys on juries also expired.12 Utley, too, died of a broken heart! In any event he had a fatal attack in 1922, immediately prior to the fall election in which he was a candidate to succeed himself.
The legislative changes of 1917, ostensibly giving women the right to be upon juries, became effective, as stated above, on July 28th. Research by members of the County Clerk’s office, mentioned heretofore, produced the facts that on October 3, 1917, two ladies were chosen to sit upon the jury in a civil action in the court of Superior Judge C. N. Andrews.
In more fact, they were de luxe! — respectively, the intimate friend, and the mother, of folks I’ve known for 50 years.
Miss Fredericka A. Cooper was “Aunt Freddie” to her niece, Jean B. Cooper, and to the latter’s close friend and business associate, Ida I. Dolph. Miss Dolph, who, with Jean, was a proprietor of “The Book Nook”, 1239 5th Ave., during the 1920s, later operated her own private circulating library. During the mid-twenties she was an adult student under this writer in the early years of Balboa University (now California Western), and in November, 1964 furnished the information about Mrs. F. A. Cooper, which is continued in the footnote.13
Mrs. James Franklin Hale (Sarah Thomas) was the mother of my close friend, Franklin T. Hale, prominent San Diego insurance executive. Although she passed away in 1942 her lovable qualities are remembered well by older members of the Central Christian Church of which she was a member for 35 years. Mrs. Hale’s picture, furnished by her son, depicts the same motherly woman of firm and high principles as do the word descriptions of her from those who knew her best. The daughter in law of this first of San Diego’s women jurors whispered to me, “She was a wonderful and capable person.”14
Justice, herself, is represented as a firm and righteous woman. With such as these, laughs and laws to the contrary notwithstanding, jury duty in San Diego is in good hands.
1. Calif. code of civil procedure, Sec. 204.
2. One of the best articles in legal periodicals about the general history of women as jurors is by R. Justin Miller, a legal scholar and jurist of extraordinary attainments.-The Woman Juror, 2 Oregon Law Review, pp. 30-63, (1922).
In 7 Virginia Law Register, pp. 634-8, (1921), in a note entitled Women As Jurors, the writer cites Arthur C. Train of the New York bar, and creator of “Tutt and Mr. Tutt” as authority for the fact women had been eligible for jury duty in Wyoming during and since the last quarter of the 19th century.
See also article in 11 American Bar Association Journal, pp. 792-7, (1925); and see Devlin, note 8 hereafter.
3. A newspaper report of the meeting of San Diego’s Board of Supervisors on September 8, 1914, as found in the San Diego Union for the following day, at page three, is as follows:
WOMEN WITH DECISION
RULING FAIR SEX OFF
JURIES IN CRIMINAL COURTS
Three disappointed women left the chambers of the Board of Supervisors yesterday when they were told that the members of the fair sex could not sit upon criminal juries in the Superior Court. They are not satisfied, however, and intend looking up the law and procedure in other cities, and if necessary they will appeal to the legislature. The women were Mrs. Cora G. Carlton, Mrs. E. F. Lynch and Mrs. Emma G. Kinne of the public welfare committee of the W.C.T.U.
In a speech to the supervisors, Mrs. Carlton said it was the opinion of members of her club that women should be allowed to sit upon juries in cases in which women were involved, especially in assault cases, where the word of a girl, unsupported, might send a man to the penitentiary.
Supervisor Thomas Fisher explained that the names of prospective jurors are picked indiscriminately and that a jury might turn out to be half men and half women. He also explained that, when jurors were not able to agree, they were frequently locked up together for the night and not allowed to separate; all of which, he said, might lead to domestic complications in the families of men and women on a mixed jury. The three advocates of the woman juror admitted that such an arrangement would have drawbacks, and they are going to have an attorney seek some method of eliminating the objectionable features.
4. Stanford: San Diego’s LL. B. (Legal Lore and the Bar), The Daily Transcript, Wednesday, October 14,1964.
5. Note 4, above; also History of the Bench and Bar of California, J. C. Bates, Ed. (1912), pp. 311-12; and see file of attorney Clara S. Foltz in San Diego County Law Library.
6. Strauder v. West Virginia, 100 U. S. 303.
7. Board of Supervisors Records 36, p. 39.
8. Devlin: Trial By Jury, p. 164 (1960).
9. People v. Lensen, 34 Calif. App. Reps. 336.
10. In re Mana, 178 Calif. Reps. 213.
11. It has been suggested that the decision of In re Mana, in California’s Supreme Court, merely held that the state constitution had been amended by inference, thus permitting the legislature to determine by code amendments that women are competent to serve as jurors, and that the legislature did not in fact so determine and amend until 1917. (See 15 California Jurisprudence 1st Series-p. 355).
The Mana case, however, merely held in 1918 that the state legislature had so determined, — for certain in 1917. It did not decide that women could not legally have been jurors before 1917. The very reasoning of the Mana decision — wholly by inference is one of the strong arguments why women should have been legally competent jurors from or before 1911.
The Mahoney-Marsh legal opinion of 1915, for instance, (in support of female competency as jurors) pointed out some irrefutable legal truths, as follows:
Sec. 199, Code of Civil Procedure, specifies who are not competent to serve as jurors, but nothing in this latter Section disqualifies a person because of being a woman.
Sec. 200, Code of Civil Procedure, ennumerates those who are exempt from jury duty, but the question of sex is not raised in that Section.
Section 17, of the same Code provides that “Words used in this Code . . . in the masculine gender, include the feminine.”
If the implied or inferred constitutional change of the rule about women jurors, as relied upon in the Mana decision, gave the legislature authority to make women competent as jurors, it appears even more inferentially clear that the legislature had in fact tried and intended so to do.
Before women were granted the right to vote, the legislature removed from Section 198 of the code of civil procedure the qualification that a juror must be “an elector of the county,” and in 1915 it removed the qualification that a juror must be “assessed on the last assessment roll of the county.” (It was only the husband’s name that generally appeared on the books of a county assessor).
The inference of legislative intention is even set forth in the letter of December, 1916 from California’s Attorney General to San Diego’s District Attorney Marsh (quoted in the text herein) in the following words: “attempts have been made to amend section 198 . . . in such manner that women should be expressly included, but . . . the conclusion which we have reached upon this question is not altered by the law in its present condition.”
When one realizes that 1917 was the year of World War I, with feminine competence gaining explosive recognition in many areas formerly dominated by males, the conclusion seems inescapable that what happened to the law about women jurors was this: Until World War I the courts were not ready to infer that women could serve legally as jurors; but after that generally emancipating event such was the only logical and conscionable conclusion to be reached.
12. McGrew: History of San Diego, V. 1, p. 429.
13. Miss Fredericka A. Cooper liked to call her own name Fred. It is so listed in the 1916 city directory. She and her niece, Jean, came to San Diego from or near the Bluegrass country during the Exposition here in 1915. She was fond of horses and horticulture, and was active in the matter of selecting plantings for the barren canyons and hillsides of Balboa Park.
14. Mrs. Sara T. Hale was born in Nashville, Tenn. in 1871. She married James Franklin Hale in Paris, Texas in 1886; and two years later at Fort Worth their first child — now Mrs. Annie H. Oatney — was born. The son, Franklin Thomas Hale, was born in Redlands, Calif. in 1904. The family had moved there a year earlier, and came to San Diego in 1906. Mrs. Hale became a widow in 1924, and passed away in 1942.
Leland Ghent Stanford , born in Lincoln, Nebraska came to Phoenix, Arizona, and then to San Diego at age five where he attended grade schools, San Diego High School, and the predecessor of State College. He graduated from Stanford University and did graduate work there for his law degree, and for an M.A. and Ph.D. in Government Administration. In 1936 he was honored with an LL.D. degree from Thomas Jefferson in Texas.
In 1926 Mr. Stanford’s law practice commenced here in association with then Congressman Phil D. Swing. Thereafter he founded and for twelve years was president of Balboa University which became California Western in 1952 when Leland and Dwight Stanford voluntarily turned over their interests to the group in the Methodist Church who desired to make the institution a church affiliate.
Between 1934 and 1950 Stanford wrote 27 law books, edited 30 others, and organized a company that distributed legal publications throughout the west. More recently he has written two volumes about historical legal matters in San Diego, and in 1963 was commissioned by the San Diego County Bar Association to write a complete history of law and justice in this county.
His community services included directorships and active roles in the Y.M.C.A., Campfire Girls, First Methodist Church, Better Business Bureau, the Advertising Club and in 1927 founded the local Cosmopolitan Club to better race relationships here.
More recently be was instrumental in founding the local Justice Foundation, a charitable trust dedicated to improved human relations in the public field. He was appointed county law librarian in 1948 and thereafter secured cash gifts of almost two hundred thousand dollars to improve the library into one of the largest and finest lawyers’ research centers in the world.