The opinion
Dissenting Opinion
DeBruler, C.J.
After the swearing of the regular panel of twelve, three alternates and twenty-five special jurors for voir dire examination, appellant made a motion challenging the array on the ground that none of these prospective jurors was a woman, except one who had previously been declared ineligible as a non-resident, and that this constituted a de facto exclusion of women as jurors. Furthermore, there were only three other women out of a total of eighty-eight prospective jurors.
I believe this was a sufficient showing of a de facto exclusion of women to have the trial court hold a hearing to inquire into the procedure used by the jury commissioners in selecting those persons whose names were placed in the jury box, the procedures used by the clerk in drawing the names from the jury box, and thereby to determine why there was a grossly disproportionate ratio of men to women among the prospective jurors. I would remand this cause to the trial court for such a determination.
This is especially true in light of the fact that the circuit court judge appoints the jury commissioners and instructs *167 them concerning their duties. Acts 1881 (Spec. Sess.), .ch. 69, § 1, as last amended by Acts 1967, ch. 140, § 1, being Burns Ind. Stat. Ann. § 4-7101. When an improbable array is challenged the court should be anxious to show that its instructions to the jury commissioners were lawful and that those commissioners followed the instructions and the statutes.
At this hearing appellant should be in the same position as a person challenging the exclusion of a particular racial or ethnic class from the jury lists. There is no justification for treating women any differently than a racial or ethnic class, with reference to official discrimination against their full participation in the affairs of government. To exclude women from juries is just as surely a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. 1, § 23 of the Indiana Constitution, as to exclude Negroes.
It follows from this that appellant need not show bad faith or intentional misconduct by any officials responsible for selecting prospective jurors. This was held in Smith v. Texas (1940), 311 U. S. 128 , 61 S. Ct. 164 , 85 L. Ed. 84 , where the United States Supreme Court said:
“It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government. We must consider this record in the light of these important principles.
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“If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.” (Emphasis added.)
See also Jones v. Georgia (1967), 389 U. S. 24 , 87 S. Ct. 4 , 19 L. Ed. 2d 25 ; Whitus v. Georgia (1967), 385 U. S. 545 , 87 *168 S. Ct. 643 , 17 L. Ed. 2d 599 ; Hernandez v. Texas (1954), 347 U. S. 475 , 74 S. Ct. 667 , 98 L. Ed. 866 ; Patton v. Mississippi (1947), 332 U. S. 463 , 68 S. Ct. 184 , 92 L. Ed. 76 ; Norris v. Alabama (1935), 294 U. S. 587 , 55 S. Ct. 579 , 79 L. Ed. 1074 ; Dixon v. State (1946), 224 Ind. 327 , 67 N. E. 2d 138 .
All that need be shown is that members of the relevant class were excluded. I believe the fact that there were only three women out of eighty-eight prospective jurors constitutes a sufficient showing to place the burden on the State to show that there was no discrimination against women as prospective jurors. Jones v. Georgia, supra; Norris v. Alabama, supra.
Neither should appellant have to show that the exclusion of the relevant class from jury duty resulted in harm to appellant. This has never been required in the Negro exclusion cases. Jones v. Georgia, supra; Whitus v. Georgia, supra; Hernandez v. Texas, supra; Patton v. Mississippi, supra; Smith v. Texas, supra; Norris v. Alabama, supra.
This Court also rejected that contention in Walter v. State (1934), 208 Ind. 231 , 195 N. E. 268 , when it said:
“It does not suffice to say that appellant can not show that his substantial rights were impaired, or that the jurors were biased or prejudiced against him, or that he did not have a fair trial. Peremptory challenges are permitted where a defendant does not, and presumably can not, point to any bias or prejudice, or lack of qualification. For reasons, the sufficiency of which we may not question, the legislature has seen fit to provide that a defendant shall have the right to a trial by jury, the names of the members of which are drawn from the jury box, and that the names which go into the jury box shall be selected by jury commissioners upon their own judgment from the names of the legal voters and citizens on the tax duplicate, which we construe to mean all classes of citizens and taxpayers whose names appear. This right may not legally be denied, and if it is denied we must presume that the defendant was prejudiced thereby. Any other rule would permit the jury commissioners, upon their own agreement, or upon suggestion, to exclude any class not only upon the basis of sex, but because of political affiliation, religious belief, an *169 cestry, occupation, or location of residence, and we can see nothing that would prevent the exclusion of not only one, but numerous classes from jury service.” (Emphasis added.)
I recognize that the case of Butler v. State (1967), 249 Ind. 484 , 229 N. E. 2d 471 , states a contrary rule concerning what appellant would have to prove. However, that case is based on treating women as a class in a manner that this Court could not and would not treat a racial or ethnic class. I believe the Butter case permits a discriminatory treatment of women in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. 1, § 23 of the Indiana Constitution.