dissenting.
That the jury commissioners, in drawing the jury panel from which was selected the jury that tried and convicted the appellant, arbitrarily and intentionally failed to select and refused to select or consider women for jury service on that panel is not disputed.
In sustaining the action of the trial court in overruling appellant’s challenge to the array, my brethren do so upon the proposition that appellant — being a male person and not a member of the class which was discriminated against — could not complain of a denial of equal protection to women in the selection of the jury. In other words, what my brethren hold is that a male defendant may not complain of the arbitrary and intentional failure and refusal of the jury commissioners, in drawing the jury panel from which the jury in this case was selected, to select women as jurors or to consider women qualified for jury service upon such panel.
To such holding I cannot and do not agree. I am of the opinion that the question here presented is one involving not only a violation of equal protection but also a denial of due process of law and a wilful and intentional disregard of the statute law of this state.
Under the holding of my brethren, one half of all the available jurors in the county may be purposely and intentionally excluded from jury service and a male defendant could not complain thereof.
If such be true, then we would no longer have prescribed standards of jury selection or service in this state. If jury commissioners can exclude women, as a class, from jury service, then they may exclude others who are members of some established class or nationality in the county. Of such conduct, only those who are members of the excluded class could complain. By such conduct, our jury system might be completely destroyed, because an accused would be denied a fair and impartial jury.
In my opinion, the case of Ballard v. United States, 329 U.S. 187, 91 L. Ed. 181, directly supports appellant’s contention here and also supports this dissent.
*451In that case, a woman and her son were indicted by a federal grand jury composed exclusively of men and from which women had been intentionally excluded. The indictment was dismissed because of the conclusion: “that the purposeful and systematic exclusion of women from the panel in this case was a departure from the scheme of jury selection which Congress adopted and that, as in the Thiel case, we should exercise our power of supervision over the administration of justice in the federal courts, McNabb v. United States (U.S.) supra, to correct an error which permeated this proceeding.”
The reference there was to the act of Congress by which the qualification of jurors in the federal court was the same as that prescribed by the state law. In other words, Congress referred to state law for a determination of the question as to what persons are qualified to serve on the juries in federal courts.
One of the petitioners in the Ballard case was a woman. In dismissing the indictment against her, because of the intentional exclusion of women from the jury panel, the court — of necessity — refused to restrict equal protection only to those of the class discriminated against. The court made it clear that its ruling in the Ballard case was an exercise of its power of supervision over the administration of justice in the federal court, to exemplify which the court quoted from Thiel v. Southern Pacific Co., 328 U. S. 217, 90 L. Ed. 1181, 66 S. Ct. 984, as follows:
“ ‘The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community * * *. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.’ ”
*452Regardless of whether there has occurred a violation of constitutional provisions or of statutory law, the fact remains that the court was there requiring that the American tradition of trial by jury — which necessarily contemplates that an impartial jury be drawn from a cross-section of the county — must be maintained.
Such is the reasoning I would apply here.
As shown by the Ballard and Thiel cases, the Supreme Court of the United States has protected federal juries against arbitrary conduct and exclusion and discrimination by administrative officers in the selection of jury panels.
If the Supreme Court should exercise such control over federal juries, why should this court refuse to exercise the same control over the selection of juries in this state? To my mind, the obvious answer is that it should not so refuse.
My brethren say that the holding in the Ballard case has been limited by Fay v. New York, 332 U. S. 261, 91, L. Ed. 2043.
As pointed out in the Fay case, the facts there were distinguished in vital and obvious particulars from those of other cases, including the Ballard case. It is necessary only to point out in the Fay case that women were on the general and special jury panel, and one woman served on the jury that convicted the petitioners.
There was, then, no arbitrary exclusion of women, as a class, from the jury panel such as exists here and such as existed in the Ballard case.
I pass now to a discussion of the question in the light of the decisions of this court and the statutes of this state.
Art. 16, Sec. 19, of the Constitution of this state places upon the legislature the duty of prescribing the qualifications for jury service. In the exercise of that mandate, the legislature, by Art. 2133, R.C.S., as amended, has provided that “All persons both male and female over twenty-one (21) years of age are competent jurors, unless disqualified under some provision of this chapter." The statute then sets forth the requisite qualifications for jury service.
Art. 2134, R.C.S., sets forth the disqualifications for jury ser*453ice. Art. 2135, R.C.S., as amended, designates those who are not liable for jury service.
The legislature also provided for the drawing and selection of jury panels by jury commissioners (Arts. 2104 and 2109, R.C.S.) and, by Art. 2110, R.C.S., has required of the jury commissioners that the jury panel be selected “from the citizens of the different portions of the county, liable to serve as jurors * *
Being' “liable to serve as jurors,” women, of necessity, must be given consideration for jury service by the jury commissioners if the mandate of the statute is to be obeyed.
There is no escape from the conclusion that when the jury commissioners, here, intentionally refused to consider women liable for jury service they violated the express mandate of the statute mentioned. So, whether the action of the jury commissioners be called a denial of due process or of equal protection, or the arbitrary disobedience of a statutory mandate, the fact remains that this defendant was denied the right to be tried by a jury drawn and empaneled in accordance with law.
The arbitrary refusal to follow the statute law of this state relative to the selection of a jury constitutes reversible error of and within itself. Newberry v. State, 140 Tex. Cr. R. 186, 143 S.W. 2d 962; Fann v. State, 140 Tex. Cr. R. 142, 143 S.W. 2d 963; Logan v. State, 154 Tex. Cr. R. 164, 226 S.W. 2d 121.
I am convinced that in this case the appellant has not only been denied a trial in accordance with due process of law but, in addition thereto, has been denied a trial in accordance with the laws of this state.
I respectfully dissent from the affirmance of this case.