ness was of a mixed kind-that both interstate and intrastate repair work and some "outside work" was there performed. We do not understand it to be the law that merely because the greater amount of business which a carrier is doing at the time happens to be interstate, its liability is determined accordingly under the federal statute; but the test rather is, what particular work is the employee then engaged in, as referable to the two classes, interstate or intrastate? This court gave some consideration to that question in Smith v. Industrial Acc. Comm., 26 Cal. App. 560, [147 Pac. 600], and we cite Zikos v. Oregon Ry. & Nav. Co., 179 Fed. 893; Howard v. Illinois Central R. R. Co., 207 U. S. 463, [52 L. Ed. 297, 28 Sup. Ct. Rep. 141]; Southern Pacific Co. v. Pillsbury, 170 Cal. 782, [L. R. A. 1916E, 916, 151 Pac. 277]. The latter decision is cited by appellant as being in full accord with its view of the law, but a careful reading of it, in connection with Zikos v. Oregon Ry. & Nav. Co., 179 Fed. 893, leads us apart from rather than toward an agreement with that contention. It will have been noted that the appellant, in addition to its plea of assumption of risk, which was inapplicable under the state law, did very fully plead the defense under the state statute of the contributory negligence of the plaintiff and as to the character or quantity of that negligence as compared with any negligence of the defendant. It is evident that the pleader intended fully to avail himself of the defenses under the state statute. That the attempt to establish matters not available under the California law as it existed at the time failed by reason of the imperfections pointed out, we are fully convinced.

The judgment and order are affirmed.

Conrey, P. J., and Works, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 13, 1917, and the following opinion then rendered thereon:

THE COURT.-The application for a hearing in this court after decision by the district court of appeal of the second appellate district is denied.

We deem it proper to say that we base our denial upon the last ground stated in the opinion of the district court of

appeal, viz., that it is apparent from the record "that there was no testimony whatsoever tending to show what particular work plaintiff was employed in at the time-whether interstate or intrastate." We are in entire accord with what is said by the district court of appeal on this point.

We are not to be taken as intimating any opinion as to what the situation would have been if, notwithstanding the absence of any issue as to the character of the work made by the pleadings, there had nevertheless been evidence tending to show that the plaintiff, at the time of the accident, was engaged in interstate commerce work.

[Crim. No. 396. Third Appellate District.-July 18, 1917.] THE PEOPLE, Respondent, v. R. E. LENSEN, Appellant.

CRIMINAL LAW-GRAND JURY OF BOTH SEXES-INVALIDITY OF INDICTMENT. An indictment found by a grand jury composed of eleven men and eight women was not an indictment found as prescribed by law within the meaning of section 995 of the Penal Code, prior to the statute approved May 29, 1917, by which the various sections of the Code of Civil Procedure relating to jurors were so amended as to render women competent to act both as grand jurors and trial jurors, and also to sit upon juries of inquest.

APPEAL from an order of the Superior Court of Modoc County denying a new trial. Clarence A. Raker, Judge.

The facts are stated in the opinion of the court.

Jamison & Wylie, for Appellant.

U. S. Webb, Attorney-General, and J. Chas. Jones, Deputy Attorney-General, for Respondent.

CHIPMAN, P. J.-The defendant is charged by indictment with having sold alcoholic liquors in violation of the statute. On his arraignment, he filed a motion to set aside the indictment upon the ground that the grand jury that found and presented the indictment was not a legal grand jury, in that it was composed of only eleven men; that is to say, it was

composed of eleven men and eight women, and that twelve men did not concur in finding the indictment.

He was tried by a jury and convicted, filed his motion for a new trial, which was overruled, and was sentenced to pay a fine of four hundred dollars. It is now specified as error: (1) That the court overruled defendant's motion to set aside the indictment; (2) that there was no evidence presented by the prosecution to the jury that the alleged beer which the defendant was charged with selling contained in excess of one per cent of alcohol.

We do not think it necessary to notice other than the first assignment of error. At the time this indictment was found, section 192 of the Code of Civil Procedure read as follows: "A grand jury is a body of men, nineteen in number, returned in pursuance of law, from the citizens of a county, or city and county, before a court of competent jurisdiction, and sworn to inquire of public offense committed or triable within the county, or city and county."

Since the first statutory enactment in 1863 defining a grand jury, the law has remained unchanged. A "jury" is defined by section 190 of the Code of Civil Procedure to consist of "a body of men."

Section 990 of the Penal Code provides that the defendant may, upon his arraignment, move to set aside the indictment, and by section 995 of the Penal Code it is provided that the indictment must be set aside by the court in which the defendant is arraigned: "(1) Where it is not found, indorsed, and presented as prescribed in this code." Unless it can be said that in the enactment of these provisions of law it was intended that women should be regarded as qualified to act as members of a grand jury, we cannot hold that an indictment presented by women or by twelve members of a grand jury, one of said twelve necessarily being a woman, would be an indictment "found" as prescribed by law.

"A jury is a body of men summoned and sworn to decide on the facts in issue at the trial." (Hunnel v. State, 86 Ind. 431, 434.)

"A jury is a body of men temporarily selected from the qualified inhabitants of a particular district, and invested with power (1) to present or indict a person for a public offense. (Ann. Codes & Stats. [Or.] 1901, par. 959; Ballinger's Ann. Codes & Stats. [Wash.] 1897, par. 4730.)

34 Cal. App.-22

"Forsyth in his History of Trial by Jury, published in 1852, says: "The distinctive characteristic of the system is this: That the jury consists of a body of men taken from the community at large, summoned to find the truth of disputed facts.'"' (Hopkins v. Nashville, C. & St. L. R. R., 96 Tenn. 409, [32 L. R. A. 354, 34 S. W. 1029, 1031].)

"Trial by jury is by twelve free and lawful men, who are not of kin to either party, for the purpose of establishing the truth of the matter in issue." (Smith v. Times Pub. Co., 178 Pa. St. 481, [35 L. R. A. 819, 36 Atl. 296, 297].)

"Jury,' as the term is used in the clause of the Constitution providing that the right of trial by jury shall not be denied, 'means twelve competent men, who are free from all ties of consanguinity, and all other relations that would tend to make them dependent on either party. It means twelve men who are not interested in the event of a suit and who have no such bias or prejudice as would render them partial towards either party.'" (State v. McClear, 11 Nev. 39, 46.)

"The terms 'jury' and 'trial by jury' are, and for ages have been, well known in the meaning of the law. They were used at the adoption of the Constitution, and always, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause is a body of twelve men, described as being upright, well qualified, and lawful men, disinterested and impartial, not of kin or personal dependents of either of the parties, etc." (Dennee v. McCoy, 4 Ind. Ter. 233, 237, [69 S. W. 858, 860].)

From the earliest period in the history of the common law, juries, grand and petit, have been composed exclusively of men. In speaking of challenges to the polls which were, by Coke, reduced to four heads as mentioned by Blackstone, one of these was on account of incompetency (propter defectum). Mr. Blackstone said: "Under the word 'homo,' also, though a name common to both sexes, the female is, however, excluded, propter defectum sexus (because not of the male sex); except when a widow feigns herself with child, in order to exclude the next heir, and a supposititious birth is suspected to be intended; then upon the writ de ventre inspiciendo (of inspecting pregnancy), a jury of women is to be impanelled to try the question, whether with child or not." (2 Cooley's Blackstone, 4th ed., p. 1123.) The grand assize was chosen by the sheriff's selecting four knights, who in turn selected

twelve others to serve with them, "and these, all together, form the grand assize, or great jury, which is to try the matter of right, and must now consist of sixteen jurors." p. 1115.)

(Id.,

Blackstone defines an indictment to be "a written accusation... presented upon oath by a grand jury" to consist of "twenty-four good and lawful men of the county." (Id. p. 1453.)

Mr. Justice Field, while on circuit, gave an extended charge frequently referred to as an admirable statement of the functions of a grand jury. Among other things, he said: "No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes, unless this body, consisting of not less than sixteen, nor more than twenty-three good and lawful men, selected from the body of the district, shall declare," etc. (Charge to Grand Jury, 2 Sawy. 667, [Fed. Cas. No. 18,255], cited in note, 2 Jones' Blackstone, p. 2525.)

Section 7 of the Penal Code, in defining the senses in which words are used in that code, provides that "words used in the masculine gender include the feminine and neuter," and the other codes have similar provisions. We do not think the word "men," as found in the sections above referred to, is used in its generic sense, and hence was intended to include women, as, for example, the word "horse" at common law was held to include "mare," and as held in People v. Pico, 62 Cal. 50.

"The English Representation of the People Act, 1867, giving the franchise to every man possessed of a certain qualification, did not enfranchise women. Although by the statute 13 & 14 Vict., c. 21, par. 4, it was enacted that 'in all acts, words importing the masculine gender shall be deemed and taken to include females,' the word man, in the ordinary and popular sense of words, is used in contradistinction to the word 'woman.' Chorlton v. Lings, L. R. 4 C. P. 374." (19 Am. & Eng. Ency. of Law, 2d ed., pp. 705, 706.)

When the statute was enacted defining the terms "jury" or "jurors," or the persons qualified to act in finding indictments, and mentioning such persons as "men," the statute. carried with it the implication that they should be males, for such was then the common law that women were incompetent to act as jurors.