No. 13035 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA, 

Plaintiff and Respondent, 

BRUCE ELMER TAYLOR, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault , Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert J. Campbell argued, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, 

argued, Helena, Montana 

Richard P. Heinz, County Attorney, argued, Polson, 

Montana 

Submitted: September 10, 1975 

Decided: oCT 1. 0 1375 

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3 55 .."r Filed: *-- 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the d-istrict court, Lake County, 

from a conviction of the charge of sexual intercourse without 

consent. Prior to trial defendant challenged the jury panel, which 

challenge was denied. A jury trial followed resulting in a "guilty" 

verdict. Judgment was entered sentencing defendant to twelve 

years in the Montana state prison with six years suspended. Defendant appeals from that judgment and sentence. 

The issue presented for determination is whether or not 

the selection of jurors for a criminal trial under sections 93- 

1301(4) and 93-1402, R.C.M. 1947, the procedural statutes for 

selecting jurors for the jury panel, is unconstitutional thereby 

depriving defendant of an impartial jury and violating Article 11, 

Section 4, 1972 Montana Constitution, which guarantees the equal 

protection of the laws and prohibits discrimination based on social 

origin or condition. 

On June 26, 1974, an Information was filed charging defendant with sexual intercourse without consent under section 

94-5-503, R.C.M. 1947. At that time defendant pled not guilty. 

On February 24,1975, defendant moved to discharge the jury 

panel. The motion was considered and denied at the time of trial 

on March 10, 1975. 

Following a verdict of "guilty", defendant's motion for a 

new trial based upon alleged improper jury selection was denied 

at the sentencing on March 24, 1975. Judgment was entered and 

defendant appeals. 

Defendant cites and argues a number of United States 

Supreme Court cases and cases from this Court in support of his 

position that the provisions of sections 93-1301(4) and 93-1402, 

X.C.M. 1947, are unconstitutional because the jury panel was taken 
from those persons "Assessed on the last assessment roll of the 

county on property belonging to him or her." Defendant argues that 

t 1 such a restrictive drawing" deprives him of the equal protection of 

the law thereby violating the Fourteenth Amendment oi the United 

States Constitution and the Montana Constitution. Defendant further argues that this protection has been extended in the I972 

Montana Constitution by Article 11, Section 4, which specifically 

declares what discriminatory factors are prohibited. Section 4 

reads : 

"The dignity of the human being is inviolable. No 

person shall be denied the equal protection of the 

laws. Neither the state nor any person, firm, corporation, or institution shall discrimin;-te against 

any person in the exercise of his civil or political 

rights on account of race, color, sex, culture, 

social origin or condition, or political or religious 

ideas. I I 

In support of his argument defendant relies on State v. Hay, 120 

Mont. 573, 194 P.2d 232; State v. Porter, 125 Mont. 503, 242 P. 

2d 984; Allen v. State, 110 Ga.App.56, 137 S.E.2d 711; Thiel v. 

Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L ed 1181; 

Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L ed 866; 

Wkitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L ed 2d 599; 

Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L ed 2d 567; 

Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1900, 26 L ed 2d 

523; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L ed 2d 

We have no disagreement with the case authority cited by 

defendant nor the law established by that authority, however the 

case authority cited is not applicable to the instant case. Here, 

defendant raised no racial issues and the jury panel of Lake County 

consisted of both white and Indian citizens. In most of the cases 

cited and relied on by defendant the challenge was to the Fourteenth 

Amendment to the United States Constitution involving racial rights 

in elections, office holding, or voting rights in bond and school 
board elections. The cited cases arose in parts of the United 

States where members of minority races were prevented from exercising their rights . 

In the Montana case, State v. Hay, 120 Mont. 573, 194 

P.2d 232, this Court found the trial court erred in picking 

additionalneedd jurors from jury box No. 3, persons located in 

the city of Helena, and in so doing deprived the appellant of a 

jury drawn countywide. Such is not the issue in the instant case. 

To put the issue in proper perspective we will examine the 

three basic elements fundamental to the right to an impartial jury. 

(1) Was the jury drawn from a cross section of the community? 

(2) Was some significant or identifiable group excluded? (3) Was 

defendant prejudiced by the operation of the Montana statutes 

governing jury selection7 

First, was the jury drawn from a cross section of the 

community? In Montana, until the 1975 legislature amended section 

93-1402, R.C.M. 1947, jury lists were drawn from those persons 

assessed on the last assessment roll of the county of property 

belonging to him or her. State ex rel. Bennick v. District 

Court, Mon t . , 538 P.2d 1369, 32 St.Rep. 793. Here, 

defendant alleges that such a procedure discriminates against poor 

people and deprives them of an impartial jury because the list 

from which the jury was chosen was composed only of persons who pay 

property taxes. Does this violate defendant's right to equal 

protection of the law? We answer in the negative. 

An impartial jury is described in the numerous cited cases 

1 r as one in which the potential membership is drawn from a cross 

section of the community". Thiel v. Southern Pacific Co., supra; 

Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L ed 84; 

Glasser v. United States, 315 U.S.60, 62 S.Ct. 457, 86 L ed 680. 

The United States Supreme Court in its most recent case considering 

this question, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 
42 L ed 2d 690, 43 Lid 4167,4169, fully reviews the numerous cases 

and makes these comments on constitutional guidelines from these 

cases : 

1) Smith v. Texas, supra: I" [i]t 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. 111 

2) Glasser v. United States, supra: "'Jc Jc ;? our notions 

of what a proper jury is have developed in harmony 

with our basic concepts of a democratic system and representative government' and repeated the Court's under- ' standing that the jury be a body truly representative 

of the community * i? " and not the organ of any special 

group or class. I11 

3) Brown v. Allen, 344 U.S.443, 73 S.Ct. 397, 97 L ed 

469: I" [olur duty to protect the federal constitutional rights of all does not mean we must or should 

impose on states our conception of the proper source of 

jury lists, so long as the source reasonably reflects a 

cross-section of the population suitable in character and 

intelligence for that civic duty. Ill 

4) Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 

26 L ed 2d 446, on the use of a six man jury: "* ik * 

that the number of persons on the jury should 'be large 

enough to promote group deliberation, free from outside 

attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of 

the community. 1 I' 

The Supreme Court noted in Taylor that since Smith v. 

Texas, supra, that it has consistently held that the selection of 

a petit jury from a representative cross section of the community 

is an essential component of the Sixth Amendment. Montana has 

followed the fair cross section requirement as fundamental to a 

trial guaranteed by the Sixth Amendment. State v. Hay, supra; 

State v. Porter, supra. Further, this Court has held that a defendant is entitled to an impartial jury, not a particular juror. 

No claim is made here that defendant did not have an impartial jury. 

State v. Hay, supra; Petition of Eoe, 156 Mont. 303, 481 P.2d 45; 

State v. Gates, 131 Mont. 78, 307 P.2d 248; State v. Moran, 142 

Mont. 423, 384 P.2d 777; Ehni v. Northern P.Ry.Co., 152 Mont. 373, 
This Court is convinced, under the facts set forth in the 

instant case, that the fair cross section requirement was not 

violated. While no technical evidence was offered or received, 

the transcript of the hearing before the court contains discussions, not disputed, of certain legal statistics and facts. 

These figures and facts were used by the district court to find 

neither prejudice nor discrimination. 

At the time the jury was drawn from the last completed 

assessment roll, 1974, it contained more names than did the list 

of registered voters. The assessment roll in 1974 provided a list 

of 11,637 potential jurors, while the number of registered voters 

was 8,497. The official 1970 census showed a total population in 

Lake County of 14,445. Using the above figures, it is apparent 

approximately 80% of the population of the county were potential 

jurors prior to July 1, 1975, while approximately 59% of the population was currently registered. In addition, it is estimated that 

a great number of the 2,808 persons in Lake County who are not on the 

assessment rolls are juveniles, so that the class of people who 

pay no property taxes is not such a definable class as to provide 

a basis for objection on an equal protection ground. Too, all 

persons who do not pay taxes are not necessarily poor. Recent 

revelations on those who do not pay taxes seem to include many 

of the listed wealthy. Perhaps that is how they become wealthy. 

Even if a class of poor people can be specifically identified, and it was not in this case, by its absence from the 

assessment rolls, such a class is so small as to be insignificant 

as compared to the facts in Taylor where 53% of the persons 

eligible for jury duty was female and no more than 10% of the 

persons on the jury wheel of the parish was female. Such a 

discrepancy was found to violate a fair cross section requirement 

by the federal court. 

The second element---was some significant or identifiable 

group excluded from jury service, we also answer in the negative. 
Counsel for defendant did not set forth case authority 

11 on the phrase systematic and intentional exclusion of a class 

of persons from jury duty" that is applicable here. )luch 

reliance was put upon the case of Turner v. Fouche, supra, where 

the Supreme Court held that a statutory system to select juries 

and school boards was unconstitutionally restricted to freeholders. In Turner 60% of the population of the county was Negro 

yet the system of selecting jury commissioners from the list 

of freeholders who in turn select the grand jury which, in its 

turn selected the members of the school board, resulted in a 

minority of Negroes on the grand jury and none on the school 

board. Turner as well as other cases relied on by defendant 

here, turned on the particular facts before the court in each 

case, and as we read Turner the holding was intended only to 

constitute a judgment on the evidence presented and did not indict 

any system based on tax rolls. 

The use of tax lists for selecting jurors has been 

specifically upheld by federal court decisions. Brown v. A.llen, 

supra. In Roach v. Mauldin, 391 F.2d 907, 908, the Circuit Court 

relied on Brown in holding that : 

It J, * in the absence of racial considerations 

the use of tax digests, which necessarily exclude 

nonproperty owners, seems to have been settled as 

not prima facie unconstitutional * fc *.I' 

Many of the cited cases note that any system used would result 

in the exclusion of some names. To hold the Montana system unconstitutional, we would have to be shown that an identifiable 

and significant class of people had been excluded. There is no 

evidence in the record to support such a finding. 

The third element for consideration is whether the 

defendant was prejudiced by the operation of Montana statutes 

governing jury selection. We hold he was not. 
Defendant has failed to show any prejudice against him 

or any injury affecting his right to an impartial jury resulting 

from any discriminatory practice of jury selection. Much discretion is left to the states, as it should be, in the various 

methods used in jury selections. Brown v. Allen, supra. 

~ontana's system of jury selection "reasonably reflects 

a cross section of the population" and defendant has failed to 

meet the burden of showing he was denied the benefit of an impartial jury as guaranteed by the 1972 Montana Constitution. 

Judgment of the trial court is affirmed. 

/ \ Justice / 2 1 

hief Justi