dissenting: I do not believe tbat any member of this Court would now care to assert tbat women are not fitted by intelligence and character to serve on juries. Also, it would be difficult, without begging tbe question at issue, to point out any incident of citizenship in which women are not now tbe equals of men. Therefore, tbe bolding to tbe contrary is based at best on a technicality of tbe law from which tbe validity of reason and propriety has long since departed.
To reach tbat result we are under tbe necessity of going far back into tbe common law and following tbe narrowest rules of construction, to tbe exclusion of others commonly applied to tbe Constitution as an expression of fundamental principles of government — rules which are intended to make of tbe Constitution a living thing, prospective in its application, applicable to tbe needs of humanity and tbe changed conditions of society where it is possible for tbe provisions to be so construed.
“Tbe courts are not inclined to adopt such technical o.r strained construction as will unduly impair tbe efficiency of tbe Legislature to meet responsibilities occasioned by changing conditions of society. It is proper to assume tbat a constitution is intended to meet and to be applied to new conditions and circumstances as they may arise in tbe course of tbe progress of tbe community.” 11 Am. Jur., Constitutional Law, sec. 51. Jenkins v. State Board of Elections, 180 N. C., 169, 104 S. E., 346.
Concededly, we may resort to contemporaneous law and conditions for definitions of terms used in tbe Constitution where tbe meaning is ambiguous; and we may likewise resort to tbe specific intent of tbe framers of tbe Constitution where there is no doubt as to tbat intent. These are tbe so-called rules of historical construction. Too narrowly followed, both of them have tbe vice of laying tbe dead band of tbe past upon tbe living present. And we gain nothing from such a reference when, at tbe most, intent is merely assumed from custom or usage; and where, as here, such custom or usage is adequately attributable to other disqualifying conditions, it affords no aid to construction.
Tbe Constitution, Article I, sec. 13 — the section with which we are immediately concerned — provides tbat “no person shall be convicted of *594any crime but by tbe unanimous verdict of a jury of good and lawful men in open court.” It may be considered with tbe provisions of Article I, sec. 19, since they both came out of a common mold. Tbe latter section provides: “In all controversies at law respecting property, tbe ancient mode of trial by jury, is - one of tbe best securities of tbe rights of people and ought to remain sacred and inviolable.” Magna Cbarta, Bill of Rights, Constitution of 1716, Constitution of 1835, Constitution of 1868.
Tbe expression originally used in tbe sources from which we obtained it was "liberi et legales homines ” and it has always been conceded that tbe term which we now translate as “men” is a generic word, including both men and women. It is not, per se, an ambiguous or equivocal term, depending for its sense — as to which sex is meant — upon the context. It is an inclusive term, and nothing else appearing, means both sexes. It is so used in all the laws which have been devised for the government of humankind from the beginning. It is uniformly so used in all the provisions of our Constitution, except where it has been necessary to express a distinction between the sexes. Where this has been necessary, appropriate words plainly expressing males or females, according to the intent, have been used. Such distinguishing words are used with regard to suffrage. Art. VI, sec. 1. The latter, of course, was automatically amended by the Nineteenth Amendment to the Federal Constitution.
To construe, as meaning males a phrase which, ipsissimis verbis, speaks to the contrary, resort has been made to the common law as defining the sort of jury intended by the Constitution, with the contention that it necessarily implies trial by a male jury. I pass, for the present, the outstanding fact that there has always been accorded to the Legislature, and to the courts, a reasonable discretion in determining what common law incidents of jury trial are essential to be preserved, in the light of our existing political and social development, with its radical changes of condition, and the further fact that many of the common law incidents of such trial, once so important, have been outmoded and systematically abandoned. When we go to.the root of appellants’ contention, I think we shall find that it has little or no basis in historical fact.
To exclude women from service on the jury upon the theory of historical interpretation, it must appear that the framers intended to use this word in the Constitution as' applicable to men only — with the purpose of excluding women. But the history of the origin of this institution and its adoption into our Constitution makes it clear that those who variously and repeatedly used the formula now under review had no such intent in mind. The circumstances under which the expressions were formulated precluded consideration of the distinction now eon-*595tended for. Tbe simple fact is that exclusion of women from jury service came from the common law, and not from the wording of the Bill of Eights or of the Constitution. The fact that the Constitution itself did not plainly say a jury of males, as it did in conferring the right of suffrage, also strongly indicates that if there was any ideology on the subject, it was activated only in the common law, not the Constitution, and should disappear when the disqualifications finding expression in the common law had been removed.
Mr. Justice Holmes, referring to the Constitution, said: “Continuity with the past is only a'necessity and not a duty.” Holmes, Collected Legal Papers (1920), 211. When that necessity arises, the past must speak in a clear voice before it is allowed to modify and restrict the plain language of the Constitution and reverse the meaning of its ordinary words in a manner to affect the citizenship of more than one-half of our present population and of generations which are to follow.
When we are called upon to invoke history for definition of a term of vital significance, it is imperative that we see that history in its proper perspective. There can be no guidance for' the present unless we thoroughly understand the essence of the things men. struggled for in those remote times and give them credit for some sense of moral and legal values — credit for the thing they had in mind, rather than what a convenient ideology may now place there. Going back to Magna Charta— and most writers regard this document as not only guaranteeing trial by jury, but as paramounting the principle of trial by peers — no student of either legal or political history would make the mistake of contending that the issue between King John and his rebellious subjects was whether jury trial should be by males exclusively, or that such a question had anything to do with the guarantee of jury trial in the Bill of Eights, or in any other source from which we have inherited or drawn the constitutional formula under review. The thing which they intended to put beyond question was the broad fundamental principle of jury trial, to which all other matters were subordinate. No necessity arose for making any distinction between the sexes in such a procedure — the disabilities under which woman rested, her inequality with man before the law, the whole body of inequity and injustice which burdened her and prevented her from being liber et legalis homo, or the peer of any man, took care of that event without the necessity of constitutional inhibition. No such question had ripened into issue when our constitutions, including the Constitution of 1868, were adopted. It would be worse than idle to call up the framers of these constitutions now as witnesses to their intent or to speculate what they would have done if such question had arisen. It simply did not arise, and there was no occasion for them to give expres*596sion to such a distinction or any ideologies they may have bad upon tbe subject witbin tbe frame of tbe Constitution. Tbis should leave tbe Constitution receptive and adaptive to tbe changed status of woman before tbe law, and in tbe capacities of her citizenship.
But if we could suppose that tbe common law, in consideration of tbe low esteem in which woman was held in those times, really bad in mind that juries should be composed of males, is tbis decisive of tbe question before us? Manifestly-not. We still must consider what order of importance that incident has in tbe scheme of common law jury trial as a means of protection of tbe liberties and properties of tbe citizen.
I have referred to tbe fact that tbe Legislature and tbe courts have always been accorded tbe discretion, witbin reason, to appraise tbe incidents of trial by jury at common law and determine those which are essential to be preserved in tbe light of existing conditions. That power has been too often and too fully exercised by tbe Legislature in times past to be now gainsaid and is inherent in tbis Court upon review. Tbe reasonable test has been whether preservation of tbe particular detail is essential to tbe security of tbe liberties and property rights which it was tbe purpose of tbe Constitution to guarantee and which were committed to tbe jury for determination. No one will be so hardy as to assert that tbe presence of women on juries would imperil these guarantees. Many would refer to tbe high moral standards of the average woman' and tbe stake she has in tbe broad questions of preserving law and order and morality, property rights, and those liberties in which she is so much interested as definitely contributing to tbe contrary result. It has not escaped tbe attention of tbe courts that tbe importance of tbis common law jury feature is still further reduced because no reason can be assigned for its origin or its retention other than tbe barbarous view of tbe inferiority of women which manifested itself in civil and political oppression so akin to slavery that we can find no adequate word to describe her present status of equality with men except emancipation — a term which is in common use in tbe courts and in tbe legal profession, and with informed laymen.
I note in tbe main opinion tbe following: “We have found no case, however, in a State with constitutional and statutory provisions similar to ours, where a contrary conclusion has been reached. . . .” Such a matter depends on tbe extent of tbe research made and tbe correct appraisal of cases in those jurisdictions where, with constitutions comparable to ours on tbe point at issue, arguments such as have been advanced in tbe main opinion have been presented and rejected. Students of law, to whom a dissenting opinion is mainly directed, will make that investigation and form their own conclusion.
*597However tbis may be, tbe courts wbicb bave dealt witb tbis question bave, witb marked uniformity, refused to regard tbe custom of an exclusively male composition of juries as an essential of jury trial necessary to be preserved witbin tbe definition imposed on tbe Constitution by tbe common law. It bas been classed witb those features originally thought so important, but now decayed and abandoned as unfitted to tbe necessities of modern conditions, although tbe constitutions bave remained tbe same. Oomrs. v. Maxwell, 271 Pa., 378, 114 Atl., 825; 8. v. James, 96 N. J. L., 132, 114 Atl., 553, 16 A. L. R., 1141; 8. v. Manuel, 41 Cal. App., 153, 182 Pac., 306; S. v. .Wallcer, 192 Iowa, 823, 185 N. W., 619; Com. v. Valotta, 279 Pa., 84, 123 Atl., 681; Moore v. 8., 197 Ind., 640, 151 N. E., 689; Wilkinson v. S., 197 Ind., 642, 151 N. E., 690; Palmer v.' S., 197 Ind., 625, 150 N. E., 917. In^Parus v. District Ct. (1918), 42 Nev., 229, 174 Pac., 706, where an amendment to tbe Constitution permitted women to vote, it was held that eligibility to jury service followed. In tbis case we find tbe following reference to citation from Blackstone: “Nor can we, witb any degree of logical force, exclude women from tbis class upon tbe basis established by Blackstone, propter defectum sexus, because we bave eliminated tbe spirit of tbis term from our consideration of womankind in modern political and legal life.” I bave not room for a further quotation from tbis illuminating and forceful opinion.
In tbe case of In re Opinion of Justices, 237 Mass., 591, 130 N. E., 685 (cited in tbe main opinion), tbe House of Representatives of tbe State of Massachusetts presented to tbe Supreme Judicial Court of that State a query respecting tbe power of tbe General Court to enact a bill making women liable to jury service. Tbe first question was: “Under tbe existing Constitution and laws of tbe Commonwealth and tbe Constitution of tbe United States, are women liable to jury duty?” That was answered in tbe negative, not because of tbe Constitution, but because tbe statute law would not permit it. Tbe second question was: “If tbe first question be answered in tbe negative, bas tbe General Court tbe constitutional power to enact legislation so that women may be made liable to jury duty?” Tbe Supreme Court answered that question in tbe affirmative. After noting tbe fact that numerous common law requirements as to jury trial bad been modified or discarded by legislation or by rule, or by custom, tbe Court said :
“No reason based on tbe Constitution is perceived why women, when they become qualified to vote under tbe Nineteenth Amendment to tbe Federal Constitution, should not also be eligible to jury service, if tbe General Court so determines. In numerous particulars of a minor nature tbe trial by jury as it existed at tbe adoption of tbe Constitution *598bas been altered. Other changes by legislative enactment have been proposed of such vital character as to be beyond the power of the General Court ... As a result of our constitutional history and practice respecting trial by jury it follows that a change by an amendment to the Constitution in the qualifications of the electorate, such as that wrought by the Nineteenth Amendment, by its own force authorizes the General Court to make a corresponding change in the qualifications of jurors . . . The second question is answered in the affirmative.”
When Commonwealth v. Weloslcy, 177 N. E., 656, 276 Mass., 398, came oil for a hearing, there had not been made any change in the statute under which women were excluded from voting, and the gist of that decision lies in the statement that the Federal Amendment “did not operate to extend the scope of ,G. L. C. 234, sec. 1, beyond its previous limit so as to make women liable to jury service without further legislative actionThe opinion of the Court with respect to the constitutional question as formerly stated in In re Opinion of Justices, supra, was unaltered.
People v. Lensen, 34 Cal. Ap., 336, 167 P., 406, cited in the main opinion as rejecting the affirmative of the question presented here, was decided 18 July, 1917, several years before the Federal Amendment to the Constitution was adopted. (It went into effect 26 August, 1920.)
Notwithstanding that opinion, by a mere change in the statute law, women were permitted to serve as jurors in California; People v. Manuel, supra; and the revised view of the Constitution and the law is summed up thus:
“Considered as jurors, the law makes no distinction between men and women. Subject to qualifications applicable alike to each, they are equally competent to act as jurors.”
The law and Constitution of the State of California is fully discussed in U. 8. v. Charles Spencer Chaplin, 54 Fed. Sup., 682, District Court S. D. Cal. Central Div., 26 February, 1944. Quoting People v. Shannon (1928), 203 Cal., 139, 263 Pac., p. 522, 523, it is said:
“There is nothing in the state or Federal Constitutions, or in any statute, which guarantees one accused of a crime a trial by a jury composed of men and women, or of only men, or of only women, or of any definite proportion of either sex. His right is to a fair and impartial jury, and not to a jury composed of any particular individuals. People v. Durrant, 116 Cal., 179, 199, 48 Pac., 75. He cannot complain if he is tried by an impartial jury and can demand nothing more.”
See, also, Be U. S. v. Boemig, D. 0., 52 Fed. Sup., 857, where the statute law was followed without deference to the suggestion that the common law required a male jury.
*599In S. v. James, supra, cited in tbe main opinion, tbe defendant challenged bis conviction because tbe jury commissioners failed to select any woman for jury duty. Tbe objection was beld not to be good, not on constitutional grounds, but because tbe statute in terms provided for men only and tbe Nineteenth Amendment to tbe Federal Constitution did not have tbe effect of depriving tbe statute 'of its force, since states still bad tbe right to legislate as to tbe qualification of jurors. Pending tbe trial of this case and before tbe bearing in tbe appellate court, tbe statute was changed to include women, and tbe Court animadverts on this. As to tbe statute, tbe Court, which theretofore bad adhered to a strict definition of tbe common law jury as reflected in tbe Constitution, bad this to say: “But our constitutional provisions in nowise trammel legislative power with reference to tbe qualifications of jurors.” And referring to tbe Nineteenth Amendment, said: “Tbe spirit of equality of tbe sexes which it breathes moved tbe legislature of New Jersey in 1921 to amend our act concerning jurors so as to include within tbe description of persons liable to be summoned as grand and petit jurors, women as well as men.” Loe. Oit. A. L. R., pp. 1145, 1146.
It is further beld in tbe main opinion that our present jury statute, by reason of its supposed enactment with reference to tbe common law, must also necessarily be construed as referring to a jury of males only, although it does not refer to “men” in any of its parts, but, on tbe contrary, deliberately and consistently uses tbe word “persons”- — and definitely requires tbe jury to be drawn from tbe taxpayers, amongst whom are certainly thousands of women citizens. Tbe question of tbe jury statute has arisen so frequently in tbe several states where women are now permitted to vote, and has been so frequently decided upon tbe view that tbe statute, unless it, in terms, provides for male jurors only, offers no barrier to eligibility of women, that it seems unnecessary to give that argument any further space.
S. v. Sims, 213 N. C., 590, 197 S. E., 176, is no authority with respect either to eligibility of women on tbe jury or to tbe effect of their former exclusion. It expressly declines to pass upon tbe Constitution in this respect, saying:
“We are of tbe opinion, and so bold, that tbe defendant in this case, being a male person, cannot raise tbe question as to whether women may serve on tbe jury by a motion to quash tbe bill of indictment; and since it is not properly raised, we are not called upon to decide tbe question suggested in appellant’s brief.”
By statutory construction tbe term men, as used in our statute, is construed to mean both male and female, except where by tbe context it must be construed to mean males; and tbe argument that tbe common *600law is superior in. force to such, a statute is distinctly novel, even if the statute on juries had used that word instead of person. Pertinent to this question, both as it applies to the Constitution and to the statute law, is Cleveland, C., C. •& St. L. By. Co. v. Wehmeier, 170 N. E., 27 (Ohio, 1929), loe. cit. 28, 29, as follows:
“. . . the makers of the Constitution only considered qualified jurors, as recognized at the time, and, by the term ‘jury of twelve men,’ they were undoubtedly preserving the common law jury composed of twelve qualified jurors. This construction is justified in the light of the use of the Avord ‘men.’
“Since the world began, in all writings concerning the human race, the word ‘man’ or ‘men’ has been used in a generic sense, or as representing the human race. The courts in construing the term have given it a generic or restricted meaning, as denoted or indicated by the context and the object sought to be obtained. . . . Applying this definition, and the rule as to the object sought, we find here in section 5 of the Constitution, in question, that the object was to secure a jury of twelve'qualified jurors.”
Thus, women were permitted to vote, since they were made electors by the Nineteenth Federal Amendment.
Manifestly, the question before us must be settled upon broader grounds of political propriety and the fairness of justice to the times in which we live and in a manner not only to do justice to the enlarged citizenship of the State, but to avail ourselves of its aid in matters affecting the equal administration of justice for all the people. It has been suggested that jury service is not a privilege of women; in the same sense, it is not the privilege of men, since neither can men nor women force themselves into the jury box without previous selection, under any legal procedure of which I know. In any other sense, it is emphatically a privilege of citizenship, since every citizen has, and ought to have, an equal right with every other citizen to participate in every service required or permitted in the administration of justice by the people. When their own rights and liberties are involved, that privilege takes on the color of right, and their exclusion is an unwarranted discrimination and may result in an intolerable injustice.
I have not attempted, of course, an exhaustive catalog of the jurisdictions in which the courts have settled the question now before us contrary to the contentions of the appellants and contra the conclusion reached in the main opinion. I have discussed some typical cases and called attention to the holding in some of these cases as to which I think there is a manifest misapprehension in the main opinion, and cited others which are typical of the majority holdings on this subject. I do *601not regard citations from our own reports in wbicb the common law jury has been referred to as a jury composed of “twelve men” as of any significance upon the question now before us, since manifestly no distinction of sex was implied. Some jurisdictions — and they are few — may be cited in support of the view, adopted in the main opinion. I feel under no obligation to the narrower reasoning upon which these decisions are based, especially the result of funneling through the Constitution, as a necessity of today, those common law disqualifications of women, now meaningless, so that even the memory of her former political degradation is sufficient to exclude her, from a tribunal clothed with the power of passing upon her liberty and property rights, and those of her fellow women.
The validity of precedent as a factor in judicial decision depends upon the soundness of its philosophy, the logic of its application to existing conditions. In the present situation we are certainly not forced to draw our precedents from concepts of law and society which were better forgotten. As I have said, in most jurisdictions of this country, since the adoption of the Nineteenth Amendment to the U. S. Constitution, women are eligible to serve on juries. An examination of the authorities cited will show that this change has commonly been accomplished without amendment to the Constitution; 31 Am. Jur., Jury, sec. 127; although statutes in some instances have had to be amended. Since then women have filled offices in all the states of the Union and in the National Government, from Cabinet Member, U. S. Senator, Governor, Judge, Member of the Legislature, on down to local administrative officers. They also serve in the U. S. Army and Navy, and not a few of them have made the supreme sacrifice in the cause of their country. They pay taxes, but their right to sit upon the jury drawn from the taxpayers is denied. Their liberties and property rights are passed upon by male juries from which they are excluded. The argument for the perpetuation of this intolerable situation rests upon the narrowest of bases. No .proponent of that view has attempted to go further than to show that a jury of males was an incident of common law jury and a matter of immemorial custom. None has attempted to justify it as applied to the conditions which now confront us. No one has gainsaid the proposition, so often reiterated in judicial discussions on this subject, that it is not now a fundamentally important incident to be observed, that it goes with other outmoded practices with which the Legislature and the courts have freely dealt as unfitted to present governmental and social necessities.
The most insistent argument advanced in behalf of appellants is that women have never been permitted to serve on juries. Which goes to show that an attitude is more formidable than an argument. “My grand-*602sire never shot at snob a mark in bis life — and neither will I.” Ivanhoe, Chapter 13.
The question before us should be settled upon a broader and more discriminating appreciation of the fundamental purposes of jury trial as a part of the judicial investigation, in protecting the rights and liberties committed to that tribunal for determination, without paramounting circumstances and details which must necessarily lose their importance with the changing conditions of society and government. Only in this way may a provision of the Constitution which, in the words it employs, speaks as of today be kept to its true intent as a living principle and an instrument of justice in the lives of people today and tomorrow. That, as I read it,'is the controlling principle of decision in a great majority of the well considered judicial opinions which have dealt with this subject. I am in accord with them. I think the defendant has had a fair trial under the Constitution and the laws, and his conviction should be upheld.