ballard argued october decided december roland rich woolley ralph curren los angeles petitioners miss beatrice rosenberg washington respondent justice douglas delivered opinion case second time involves indictment conviction respondents using conspiring use mails defraud criminal code criminal code fraudulent scheme charged promotion movement alleged fraudulent religious organization use mails nature movement facts surrounding origin growth summarized prior opinion sufficient say petitioners found guilty charge trial judge withheld jury questions concerning truth falsity religious beliefs doctrines circuit appeals reversed granted new trial holding error withhold questions jury turn reversed circuit appeals sustained district ruling petitioners argued however even though circuit appeals erred reversing judgment conviction ground action justified distinct grounds circuit appeals passed questions benefit views accordingly deemed appropriate remand cause might first pass questions reserved remand circuit appeals one judge dissenting affirmed judgment conviction without discussion issues raised petition rehearing denied circuit appeals filed opinion discussed questions reserved granted petition certiorari serious questions concerning administration criminal justice raised met outset concession women included panel grand petit jurors southern district california indictment returned trial intentionally systematically excluded panel issue raised motion quash indictment challenge array petit jurors intentional systematic exclusion women panel motions denied denial assigned error appeal jury question issue stage proceedings except first time case us time point assigned argued case instance instance present petitioners said issues case obscured question brought passed upon argued consequently remanded case consideration remaining issues circuit appeals jury issue argued circuit appeals hold waived passed upon issue concluding error exclusion women panel page see dissent page circumstances say government suggest petitioners lost right urge question moreover case reynolds error though presented first argument appears face record us see sibbach wilson congress provided jurors federal shall qualifications highest law state judicial code criminal code provision applies grand well petit juries congress also prohibited disqualification citizens jury service account race color previous condition servitude required jurors shall chosen reference party affiliations provided jurors shall returned parts district may direct favorable impartial trial incur unnecessary expense unduly burden citizens part none specific created along lines sex provisions reflect design make jury community truly representative glasser california women eligible jury service local law code civil procedure system jury selection congress adopted contemplated therefore juries federal courts sitting representative sexes women excluded half available population drawn upon jury service put matter another way congress referred state law merely determine qualified act juror whether method selecting jury federal qualified proper question federal law glasser supra pages pages thiel southern pacific presented similar problem civil case removed district ground diversity citizenship involved question liability common carrier passenger persons worked daily wage deliberately intentionally excluded jury lists held exercise power supervision administration justice federal courts see mcnabb plaintiff motion strike panel granted gist ruling contained following statement opinion thiel case american tradition trial jury considered connection either cr minal civil proceedings necessarily contemplates impartial jury drawn community mean course every jury must contain representatives economic social religious racial political geographical groups community frequently complete representation impossible mean tive jurors shall selected officials without systematic intentional exclusion groups recognition must given fact eligible jury service found every stratum society jury competence individual rather group class matter fact lies heart jury system disregard open door class distinctions dicriminations abhorrent democratic ideals trial jury conclude purposeful systematic exclusion women panel case departure scheme jury selection congress adopted thiel case exercise power supervision administration justice federal courts mcnabb supra correct error permeated proceeding said however male panel drawn various groups within community truly representative women included thought factors tend influence action women influence action personality background economic sex yet enough say women sitting jurors neither act tend act class men likewise act class shoe foot claim jury truly representative community men intentionally systematically excluded panel truth two sexes fungible community made exclusively one different community composed subtle interplay influence one among imponderables insulate courtroom either may given case make iota difference yet flavor distinct quality lost either sex excluded exclusion one may indeed make jury less representative community true economic racial group excluded present case involves prosecution mother son promotion allegedly fraudulent religious program judge denman dissent stated average family jurors drawn souls children infant early adolescent bodies receive first lasting teaching religious truths mothers families major social function men concerned creation material things largely food clothing housing children bodies public schools per cent primary grammar school teachers women churches religions numbers women attendants divine service vastly exceed men one large vital religious group created america since joseph smith christian scientists founded woman mary baker eddy matters viewpoint testimony conspiracy mean vile warrants strongest strictures prosecution woman juror sitting ballard trial mother five children whose knee instilled teachings jesus interpreted eddy sensitive woman highly spiritual character rationalize money income acquired ballard devoted teachings jesus profits trust created eddy christian science monitor pages point illustrates exclusion women jury panels may times highly prejudicial defendants reversible error depend showing prejudice individual case evil lies admitted exclusion eligible class group community disregard prescribed standards jury selection systematic intentional exclusion women like exclusion racial group smith texas economic social class thiel southern pacific supra deprives jury system broad base designed congress democratic society departure statutory scheme well stated roemig action operative destory basic democracy classlessness jury personnel accord defendant type jury law entitles administrative denial right lawmakers seen fit withhold actually guaranteed cf kotteakos injury limited injury jury system law institution community large democratic ideal reflected processes courts thiel case merely instance petit jury drawn improper panel remand cause new trial said grand jury likewise drawn panel improperly chosen therefore indictment returned accordance procedure established congress accordingly indictment must dismissed disposing case ground reach issues urged suggested limiting opinion prolong already lengthy proceeding told petitioners us determination questions left undecided know assume speculative may may present new charges framed within limits earlier opinion properly constituted grand jury may may return new indictments petitioners may may convicted second time reversed justice jackson concurring concur result quite different reasons join opinions justice frankfurter justice burton effect direct dismissal indictment upon jury question opinion point either abandoned parties ignored silently rejected prior decision revived therefore reach issues case direct dismissal indictment upon grounds stated dissent ballard page page ground previously ruled improper trial inquire whether religious professions experiences represented defendants true false inquire whether represented without belief truth leaves statutory basis conviction fraud especially basis conviction indictment requires opinion provably false representation addition knowledge falsity make iminal mail fraud since trial allowed make findings indictment dismissed justice frankfurter chief justice justice jackson justice burton concur dissenting exercise supervisory power lower federal courts directing dismissal indictment case following practice prevailing federal district california women included panel grand jury found indictment brother burton demonstrates believe circumstances absence women grand jury panel vitiate indictment event authority supervise practice lower federal courts exercised vindicate appropriate standards judicial administration finding exclusion women grand jury panel fatal indictment embraces claim benefit petitioners abandoned four years ago since women excluded jury service california federal courts since justify action means emphasizing lower courts duty adopting proper practice thus directs dismissal indictment circumstances action advance proper administration criminal justice defendants fully cognizant facts issues involved made objection composition grand jury panel abandoned objected array district saved point objection overruled assigned one errors tions appeal circuit appeals ample time defendants rely circuit appeals decided glasser indicated deemed important jury selected may described modern democratic basis yet point made overruled district argued briefs circuit appeals although defendants vigorously urged claims reverse convictions fact jury question issue circuit appeals sense assigned error neither briefed argued serves emphasize abandonment issue government petition case came defendants surely pressed every claim seemed relevant sustain judgment circuit appeals entered favor well settled require citation cases respondent may urge support ground judgment favor sustained whether argued briefs oral argument vigorously urged issues going validity indictment exclusion women even mentioned full record took notice question found undermine entire proceedings remanded case circuit appeals plainly decide questions argued left undecided hardly invited decision questions abandoned argued procedural point ever abandoned objection jury panels abandoned glasser opinion point properly preserved appeal papers abandonment issue petitioners case came circuit appeals later us mean confidence claim event hur deemed fatal error hardly helps proper administration criminal justice allow defendants resurrect point dropped four years earlier even find exclusion women constitutes inroad vital safeguards criminal trial involve denial due process orders dismissal indictment past practice pursued good faith misapprehension relevant law misconception corrected proper practice enforced since order serve means ensuring charge federal practice change already taken place dismissal indictment put end prosecution offenses charges event relieve duty deciding central issue us namely whether mails may used obtain money fraud final consists false claim belief touching religion dismissal indictment terminate prosecution offenses congress act may stat amended july stat expressly saved prosecution act congress allowed reindictment indictment found defective basis prosecution left untouched amended provides indictment found defective insufficient cause period prescribed applicable statute limitations expired new indictment may returned later end next succeeding regular term following term indictment found defective insufficient grand jury thereof shall session considering history litigation reasonable assumption gove nment press prosecution conviction circuit appeals reversed ordered new trial petition government brought case government urged judgment conviction restored defendants challenged foundation invoking constitutional guaranty freedom religion april reversed circuit appeals found district properly jury questions concerning truth falsity religious beliefs doctrines respondents page page case remanded circuit appeals without considering question whether first amendment affords immunity criminal prosecution procurement money false statements one religious experiences three justices concluded verdict stand opinion late chief justice denied first amendment afforded immunity fraudulent use mails simply false statements concerned religious beliefs fourth justice likewise thought issue met concluded indictment dismissed raised issues inextricably bound traditional liberty sustained view first amendment upon remand circuit appeals considering issues impliedly remitted found flaw jury verdict affirmed conviction three years case main issue urged argument extensive briefs power government maintain prosecution view first amendment decision merely directing dismissal indictment error selection grand jury found inevitably lead curing defect resubmission properly selected grand jury hardly believed government feel duty whole machinery criminal justice set motion trial follow district naturally deem bound entertain prosecution view decision circuit appeals twice left undisturbed rejected claim based religious liberty much like playing justice await third review two three years hence facing issue explicitly doctrine constitutional claim prematurely considered vital feature harmonious functioning scheme government rule founded reason mechanical formula avoiding aspect litigation fairly decided without meeting constitutional issue controversy really disposed merely finding grand jury improperly selected abstention constitutional adjudication imperative case prosecution barred statute limitations act seen removes bar sanctions reindictment anticipated view circumstances litigation escape responsibility dealing merely remediable invalidity indictment leaving untouched decision circuit appeals prosecution valid course defendants might acquitted new trial purports exercise supervisory authority interests administration criminal justice permit waste unfairness involved new trial foundation especially claim proper administration justice case courts almost six years starting new round result decision short prosecution ill continue unless terminate terminate deem beyond constitutional authority prosecution charges upon jury found defendants guilty circuit appeals sustained give implied sanction continuance prosecution mean withholding view issue inescapable full disposition controversy candor repels requirements constitutional adjudication justify justice burton dissenting altough concur policy requiring inclusion federal jury lists california women qualified service jurors highest law state believe justified dismissing indictment returned case merely women included lists time absence binding statutory rule requiring inclusion women district compelled exercise discretion including excluding without depending breadth discretion allowed district circumstances submit reasons district action strengthen position retroactively disapprove established local federal practice conformed almost exactly established state practice ever since first judicature act congress subordinated federal practice state law determining qualifications federal jurors act said jurors shall qualifications requisite jurors laws state citizens serve highest courts law state section act september stat similarly present law reads serve courts state respectively shall qualifications subject provisions hereinafter contained entitled exemptions jurors highest law state may entitled time jurors service courts summoned section judicial code stat constitutional statutory rule policy requiring women placed federal jury lists congress might required course might set complete federal qualifications federal jurors never done instead provided state action shall determine qualifications federal jury service result reversible error federal courts include women federal juries make women eligible service jurors highest law cf crowley inescapable recognition congress sees nothing seriously prejudicial continued use exclusively male federal juries women eligible state jury duty availability appropriate accommodations two sexes treated material factor determining whether women men shall called jury duty acts resolves people shannon cal see report judicial conference committee selection jurors subordination need women federal juries availability physical accommodations tacit recognition fundamental infraction rights litigants involved continuance exclusively male juries employments women distinguished men matter law connection hours conditions work west coast hotel parrish distinctions due considerations applicable jury service general increasing absence sound reasons distinctions men women matters suffrage office holding education economic status civil liberties church membership cultural activities even war service emphasizes lack reason making point presence absence either sex either grand petit juries see miller woman juror general practice calling women jury duty although eligible duty state courts california effect granted women substantial exemption duty people parman people shannon supra see ballard california courts thus treated men women equally qualified assumed litigants adequate impartial jury regardless sex jurors provided jurors otherwise qualified serve cf hyde agnew state practice binding upon federal courts matter law yet persuasive indicating litigants need treated prejudiced federal district conformed practice state state rule see people parman supra mana cal people manuel error federal practice exclusion women exclusion permitted required federal statute eligible state jury duty error must consist failure require listing women well men federal jury service state permits listing state jury service even though state regards listing directory mandatory upon state courts ample grounds distinguishing thiel southern pacific case example thiel case acted absence actual notice objectionable practice whereas notice practice objected changed two years ago conform least substantially approved practice also thiel case procedure complained consisted exclusion economic group thereby detracting representative character jury list manner contrary tradition purpose jury system exclusion women jury service accordance traditional practice accordance congressionally approved future practice federal state courts shows objectionable practice state established directory system eligibility women state jury service federal enlarge policy mandatory requirement qualified women placed upon federal jury lists reasons unable concur judgment setting aside indictment verdict convictions case affirmed concur statement chief justice stone none respondents constitutional rights violated prosecuted fraudulent procurement money false representations beliefs religious otherwise ballard chief justice justice frankfurter join dissent justice jackson joins except far final paragraph relates affirmance convictions footnotes women members grand petit juries district since beginning february term see chaplin thus judicial code provides drawing jurors grand petit persons qualifications prescribed judicial code judicial code judicial code person shall serve petit juror one term year judicial code artificers workmen employed armories arsenals exempted service jurors cf judicial code dealing disqualifications jurors prosecutions bigamy polygamy unlawful cohabitation report judicial conference committee selection jurors earlier indictment subsequently dismissed returned petitioners moved quash exclusion women panel grand jurors motion denied ballard ruling seems influenced thought california law determined whether exclusion women resulted proper jury california law inclusion women panel obligatory statutory provisions qualify jury service directory people shannon cal people parman see miller woman juror oregon cf carson women jurors problem reflected discussions androcentric theory gynaecocentric theory scientific literature see ward pure sociology ch xiv draper et human constitution clinical medicine ch vi cf wuichet two cases invoked inapposite circumstances reynolds different us action case afford support done affirming conviction noticed sentence imposed trial imprisonment hard labor whereas applicable statute authorized sentence ordinary imprisonment called attention kind error notice error everybody overlooked uncorrected subjected defendant punishment far severe authorized congress case us error may goes procedural point bearing fairness trial conviction sentence result action procedural point vitiate entire proceeding merely remand formal resentencing reynolds case also reynolds case noted error indicated petition rehearing term previously indicated evidently previously noted anyone make way surface duly vigorously urged assigned error dropped buried three years resurrected afterthought makeweight argument merits sibbach wilson district sought punish contempt action specifically exempt punishment error nature apparently noticed pressed defendants first time case came considered point case reappears tail another issue three years record containing alleged error first came us federal courts therefore bound state definitions jurors qualifications subject federal constitutional statutory limitations argued fifth sixth amendments constitution guarantee continuance exclusively male common law federal juries generally agreed women qualified serve federal juries wherever declared qualified jurors highest law respective see wood tynan certiorari denied hoxie certiorari denied appears however beginning practice objected thiel case discontinued louis goddman district judge federal jury selections affected thiel southern pacific company journal state bar california