Gwendolyn HOYT, Appellant, v. STATE of Florida, Appellee, 119 So. 2d 691

DREW, Justice. Gwendolyn Floyt was indicted for second-degree murder of her husband Clarence Hoyt. She pleaded not guilty and not guilty by reason of temporary insanity, was tried and a verdict of guilty as charged was rendered by the jury. The homicide occurred at the parties’ home when appellant, after prolonged marital discord and alleged infidelities, called, her husband from his military station in another city by a false report of injury to their young son.

She was unable to salvage their relationship by any means, and when she was so informed by the deceased in a final and unequivocal fashion at the unfortunate moment when she was disposing of a damaged baseball bat, the fatal blows were struck. Immediate medical attendance could not repair the extensive head injuries which resulted in death the following day. Appellant gave a full account of events, which are not materially in dispute, indictment and trial followed in ■due course, and this appeal ensued.

By challenge to the all-male jury panel the appellant raised an issue as to the validity or constitutionality of F.S.

Section 40.01(1), F.S.A., insofar as it provides that, while jurors are to be taken from male and female electors, “the name of no female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” The validity of the statute was sustained by the trial court. Jurisdiction of this Court is invoked to review that judgment as one “directly passing upon the validity of a state statute * * * or construing a controlling provision of the Florida or Federal Constitution.

The record reflects that the list of names from which the venire was chosen did contain some names of women who had registered for jury service, and that the number so included was proportionately at least a fair representation of the total number of eligible women registered for jury service. The complaint, therefore, is that the law itself, by imposing upon women a burden (voluntary registration) not imposed upon men as a requirement for being called to jury service, operates to deprive the defendant of the “impartial jury” required by

Section 11, Declaration of Rights, Florida Constitution, or of “equal protection of the laws” guaranteed by Amendment XIV, United States Constitution. Neither contention can be sustained.

Courts, under laws making women eligible for jury service, have condemned the exclusion of eligible women from a jury by arbitrary administrative action, noting in this respect that their exclusion “may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” We find no instance, however, where a court has overruled a legislative determination, or declared invalid a constitutional provision, that women as a class should be subject to different treatment or regulations, such as those here involved, with respect to jury service.

The prohibition is against the enactment or application of laws to single out a class for different treatment “not based on some reasonable classification” or basis. All such decisions recognize the fact that “circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period,” and that a defendant’s only right is to be “tried by juries from which all members of his class are not systematically excluded” — a right to juries fairly selected from among all qualified or eligible persons.

None of the later opinions either expressly or impliedly abandons the early pronouncement that within certain limits the law may prescribe qualifications for jurors “and in so doing make discrimina-tions. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.” Provisions for absolute ineligibility or general exclusion of women from jury service were, of course, the universal rule in the past, grounded historically, we believe, upon the inconsistency of such demands with their role in society.

From the established precedent that women as a class may be excluded altogether from this particular civic labor without depriving a defendant of any constitutional rights, it logically follows that a rule or regulation of their service is not objectionable merely because it may incidentally operate to limit the proportion of women on juries.

Even if it be conceded that an impartial jury, or due process of law, includes the concept of a “representative” jury, one is entitled under all the cited cases only to attack provisions which limit unfairly, or without a reasonable basis, his opportunity to obtain such a jury. The statute under consideration does not, in our opinion, make such an arbitrary classification or discrimination. The same functional rationale mentioned in connection with the former exclusionary rule will sustain a statutory rule, such as our present law, against compulsory service after removal of eligibility barriers.

Whatever changes may have taken place in the political or economic status of women in our society, nothing has yet altered the fact of their primary responsibility, as a class, for the daily welfare of the family unit upon which our civilization depends.

The statute, in effect, simply recognizes that the traditional exclusion was based not upon inherent disability or incapacity but upon the premise that such demands might place an unwarranted strain upon the social and domestic structure, or result in unwilling participation by those whose conflicting duties, while not amounting to actual hardship, might yet be expected, as a general rule, to affect the quality of their service as jurors.

The law vests in the individuals concerned, as those best qualified to judge, the right to decide without compulsion whether such service could be rendered without risk of impairment in their more vital role. There is an obvious distinction between such a legislative classification or rule of privilege and the case of a blanket administrative exclusion of an eligible class for supposed hardship. With respect to other objections to the manner in which the jury list was compiled, appellant has failed to show that the requirements of F.S.

Chapter 40, F.S. A., were violated in any way. That law contains no positive mandates that selections be made in any particular proportions, and the evidence does not indicate anything resembling a systematic exclusion of eligible registered female electors. Likewise the statute clearly contemplates the use of clerical assistance in the preparation of the list and does not require more than the personal supervision and review exercised by the commissioners in this case.

The assertion is made that the procedure followed in compilation of the jury list amounted to unlawful delegation of the commissioner’s discretionary powers and violated certain principles referred to in our decisions. First, “they cannot by subsequently ratifying a selection made by some other person render the selection valid.” An investigation of the decisions upon which this text statement is based fails to reveal any case in which a court has disapproved the typing of names by an employee from specified registration lists at the direction of the commissioners, in the circumstances of this case.

The evil against which the rule is obviously directed is the choice of names by any “other person” in the character of a volunteer or one having even a potential interest in the procedure. The transcription of names from a specified register under direction of law or order of the commissioners does not, upon any rational theory, amount to “selection” by the transcriber or clerk, but rather the selection is in fact made by the officials directing the procedure and approving the list compiled.

Similarly, their action is “in concert” if the certification of the list and the procedure by which it is produced is the result of their combined and cooperative efforts, as opposed to a list “drawn by some of county commissioners in [total] disregard of counsel and advice of others.” Certainly the decision first above cited to the effect that a challenge may be based upon participation by parties, other than clerical assistants, who are alleged to be prejudiced to defendant and taking an active

part in the prosecution of the cause, is not inconsistent with the conclusion reached in this case. The appellant further contends that the court erred in denying motion for directed verdict of acquittal upon the medical testimony as to insanity; and in refusing to find upon the evidence that the charge should as a matter of law be reduced to manslaughter. On these issues it will suffice to say that a jury question was, under former decisions of this Court, plainly presented. There was no conflict in respect to appellant’s medical history, reflecting affliction with epilepsy from an early age.

But, while medical experts were not in full accord on all points, there was ample testimony from which a jury could find that there existed no disabling malfunction at the time of the homicide under the established rules for determination of criminal responsibility. Among the other points urged by appellant are objections to comments by court and counsel in the course of trial before the jury; objections to latitude permitted in cross examination of appellant; and alleged error in submitting the form of verdict “not guilty by reason of insanity” upon the plea of temporary insanity entered in the cause.

We conclude from an exhaustive consideration of the record in these respects that no prejudicial error was committed. The objections to “hearsay” are apparently based upon the court’s alleged error in admitting into evidence a memorandum made by a witness for the prosecution, Mrs. Edna Leonard, in the course of her business employment by a baby-sitting agency. Her testimony was simply that on a specified date she had occasion to make a record of a call for a baby-sitter, and (it was only upon cross examination that the caller was identified as a man) there appeared upon the face of the note the name “A. H.

Bib-by,” a street address which was that of defendant, and the name “Mrs. Ellen Osteen,” together with the name “La Motte” subsequently identified as the sitter sent on this job. Mrs. La Motte then testified that she was sent on the date in question to the specified address to baby-sit for a Mrs. Osteen, and that the woman who admitted her, and employed her to remain with a child during her absence with a man until 5:00 a. m., was the defendant.

The testimony in this regard was clearly within the scope of rebuttal to defendant’s line of defense in general, and her statements in particular that she did nothing to contribute to the deterioration of her marital relationship, that “all I wanted to do is go live with him. * * * All I did was wait for him. * * * ” Evidence for the defense was directed to showing a course of events affecting the marital relationship and producing in defendant such a state of mind as to relieve her from criminal responsibility for her acts.

In this situation evidence of other events vitally affecting the marital relation, and bearing upon her alleged state of mind, was properly admitted in impeachment. The collateral issue as to use of fictitious names arose unavoidably in the course of the •witnesses’ report of the incident, and the disputed memorandum did not put before the jury any material information other than that contained in other admissible testimony.

Assuming without conceding any merit in the remaining contentions, that the instructions did not specifically cover evidence of a prior conviction, and that there was error in qualifying a juror who was under prosecution for a federal offense, these cannot avail the appellant in this case who, having full knowledge or notice in both instances, failed to object or raise an issue in a proper and seasonable fashion. Moreover there is no showing, or assertion, that under the circumstances any actual bias resulted. Affirmed. TERRELL, ROBERTS, THORNAL and O’CONNELL, JJ., concur. THOMAS, C.

J., and HOBSON, J., concur in part and dissent in part. .“40.01 Qualifications and disqualificar cations 0† jurors “

(1) Grand and petit jurors shall be taken from the male and female persons over the age of twenty-one years, who are citizens of this state, and who have resided in the state for one year and in their respective counties for six months, and who are duly qualified electors of their respective counties; provided, however, that the name of no female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” . Art.

Y, See. 4(b), Constitution of the State of Florida, F.S.A.; Rule 2.1a(5) (a), Fla.Rules of Appellate Procedure, 31 F.S.A. . Ballard v. United States, 329 U.S. 187, 67 S.Ct. 201, 264, 91 L.Ed. 181; Annotation 166 A.L.R. 1422. . Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 670, 98 L.Ed. 866; Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181. . Hernandez v. State of Texas, ibid. . Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. Pay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. . Hall v. State, 136 Fla. 644, 187 So. 392; Bacom v.

State, Fla., 39 So.2d 794; Annotation 157 A.L.R. 461. . See note (1) supra. . See Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181. . Cf. Chance v. State, 115 Fla. 379, 155 So. 663, construing Sec. 4444, C.G.L.1927. . Ibid., 155 So. at page 664. . 50 C.J.S. Juries § 158, p. 882; cases collected 92 A.L.R. 1109, 1112. . State ex rel. Jackson v. Jordan, 101 Fla. 616, 135 So. 138. Cf. State v. Walters, 61 Idaho 341, 102 P.2d 284. . See Warner v. State, Fla., 84 So.2d 314. . Ibid. . F.S. Sec. 918.10(4), F.S.A. Brunke v. State, 100 Fla. 43, 33 So.2d 226.

See also Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611.