dissenting.
Notwithstanding the fact that the trial court, intentionally and without lawful authority, discharged from the jury panel eight women who possessed the qualifications of jurors and who had been selected for jury service in accordance with law, my brethren affirm this conviction solely upon the theory that the error of the trial court in so discharging the women jurors was harmless to the appellant.
My brethren excuse and justify the trial court’s unauthorized discharge of the eight women jurors solely because he had no legislative authority permitting the separation of men and women jurors and “had no notice that this Court would hold that such legislative authority was not necessary.”
But we did so hold, in Dukes v. State, 162 Tex. Cr. R. 71, 282 S.W. 2d 235. The constitutional amendment extending to women the right to serve on juries was self-enacting; no enabling legislation was necessary in order to qualify women for jury service.
From and after November 19, 1954, the effective date of the amendment, women were qualified for jury service in this state. Torres v. State, 161 Tex. Cr. R. 480, 278 S.W. 2d 853.
The jury commissioners who selected the jury panel in this case recognized such fact, because, in the performance of their duty to select jurors from those “liable to serve as jurors” (Art. 2110, R.C.S.), they selected eight women on the jury panel.
The trial court may not have had notice from this court as to what our holding would be as to jury separation — as my brethren suggest — but he surely had notice that the eight women he was discharging from jury service were qualified under the Constitution of this state and had been duly selected to so serve.
If the trial court could discharge the eight women jurors *264without lawful authority, as he did here, he could discharge the entire panel by the same process and for the same reason, and thereby would he defeat and nullify the whole of our statutory process for the selection of juries in this state.
I am at a loss to understand how it can be said that under such a state of facts due process of law and trial by jury have not been denied or the statutes of this state governing the selection of juries have not been violated.
In Tomlin v. State, 108 Tex. Cr. R. 522, 1 S.W. 2d 635, we held that a trial court was without lawful authority to arbitrarily discharge a regularly drawn jury panel. A reversal of the conviction was based upon that arbitrary action.
The denial to an accused of a jury selected and impaneled as required by the laws of this state constitutes reversible error, without the necessity of a specific showing of injury. 26 Tex. Jur., Sec. 78, p. 642, wherein the rule is quoted as follows (from White v. State, 45 Tex. Cr. R. 597, 78 S.W. 1066) :
“ ‘The right of trial by jury stands upon a higher plane than expediency; and fair trial by jury means a jury selected according to law regulating their selection and impanelment.’ ”
Supporting authorities are there cited. It is also there quoted (from Adams v. State, and Bell v. State, cited below) :
“ ‘It is no answer to the requirement of the statute to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury. We might go further and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure to follow the statutory method.’ ”
Adams v. State, 50, Tex. Cr. R. 586, 99 S.W. 1015; Bell v. State, 92 Tex. Cr. R. 342, 243 S.W. 1095.
In view of the authorities discussed, it is indeed difficult to understand how my brethren can say that the error of the trial *265court was harmless and that the appellant had no right to complain thereof.
As further supporting my views here, I refer to my dissenting opinion this day delivered in Winfield v. State, No. 27,770. (293 S.W. (2d) 765,) upon a question of similar import.
I respectfully dissent from the affirmance of this case.