(dissenting).
The bill of exceptions we consider was taken to the trial court’s overruling of defendant’s motion to quash the indictment *581based upon an allegation of discriminatory practices in selection of the general venire. This is a proper allegation upon which to found a motion to quash under Code of Criminal Procedure Articles 532 and 533. Article 532 pertinently provides: “A motion to quash may be based on one or more of the following grounds: * * * (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.” Article 533 reads in part: “A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds: (1) The manner of selection of the general venire, the grand jury venire, or the grand jury was illegal. * * * ” (Emphasis supplied.) See also Article 535 B(2) and (3).
The majority appears to believe that a statement taken out of context from Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), supports a holding that only the grand jury and the petit jury are subject to attack for discriminatory practices in juror exclusion, and the majority dwells at length upon the defendant’s failure to attack the grand jury and the petit jury. Defendant had a right to level his complaint directly against the general venire, which he was convinced was tainted because of discriminatory practices. A direct attack upon the general venire is, of course, also an attack upon any grand or petit jury formed from the general venire. If the general venire fails constitutionally, it naturally follows that any special venire drawn from it or any jury selected under it would also fail constitutionally.
The majority opinion’s lengthy discussion of the racial makeup of the grand jury and the petit jury does not meet the issue raised in the motion to quash, which has been argued and briefed so ably in this court. Defendant’s principal complaint, which I believe has merit, is that the trial court refused to allow him to establish or attempt to establish by the only method available that the general venire was in fact selected in a manner that discriminated against black people. Defendant had established the character of the population —i. e., the percentage of blacks eligible for jury service. Legal error occurred when the trial court curtailed examination of witnesses to determine the actual racial character of the general venire. Defendant had the obligation to establish a prima facie case of discrimination by showing a disparity between the percentage of his race in the general population and the percentage of his race included in the venire. Necessarily the defendant had the right to use the best legal evidence available to discharge this burden.
It is well settled that once a defendant has made a prima facie showing of discrimination by establishing such a disparity, the burden of proof shifts to the State to show why the disparity exists, and that *583if the State fails to prove that the disparity did not result from systematic exclusionary practices, the defendant is successful in his attack upon the venire under the prima facie showing.
Beginning with Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), the Supreme Court of the United States has repeatedly asserted that the defendant’s showing of disparity “ * * * made out a prima facie case of the denial of the equal protection which the Constitution guarantees”. In Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953), the court said: “* * * We have held before, and the Georgia Supreme Court, itself, recently followed these decisions, that when a prima facie case of discrimination is presented, the burden falls, forthwith, upon the state to overcome it. * * * ” The court there cited Norris v. Alabama, supra; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L.Ed. 76 (1947).
The majority opinion here has cited numerous cases which actually support the defendant’s position, and yet it has held them inapposite on the basis of a belief that the holdings of those cases apply only to the composition of grand and petit juries and not to the composition of the general venire. I cannot accept this reasoning, for certainly when a general venire is unconstitutionally formed, everything which flows from that venire is tainted as well.
In the case of Whitus v. Georgia, supra, the court said that the burden of showing purposeful discrimination shifts when the defendant has made out a prima facie case. Actually in Whitus, which the majority claims involves attack only upon the grand and petit juries, the prima facie case of discrimination was established from the jury commission’s use of taxpayer lists separate by race which created a disparity in the general venire. The court then held the State had failed to carry the burden of showing that the disparity had not resulted from purposeful discrimination, for general testimony that no one was included or rejected because of race or color was insufficient to overcome the prima facie case. Norris v. Alabama, supra, and Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L. Ed. 1161 (1955), were cited.
The majority claims that Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), supports its position that attack cannot be made upon the general venire. The inquiry in Carter v. Jury Commission of Greene County was directed at the composition of the “jury roll” and “jury lists” and the “potential jurors”. The court was there concerned with the commission’s method of selecting what we would call the general venire, and the attack was upon a *585practice that excluded Negroes from jury-service because of their race. This was not an appeal from a criminal conviction; it was a class action where blacks complained that systematic exclusionary practices by jury commissioners made it impossible for them to be enrolled on the general venire from which they could be called for jury service.
While none of the cases cited by the majority supports the proposition for which the majority argues, Carter v. Greene County is especially inapposite as authority, for this is the first case to reach the Supreme Court in which a direct action was brought by a class attacking the method employed by jury commissioners in the composition of their jury lists.
In Muniz v. Beto, 434 F.2d 697 (5th Cir. 1970), relying on Norris and other cases, the court said that the rule has developed that “ * * * a defendant can establish a prima facie case of discrimination by showing a disparity between (1) the percentage which his race constitutes of the group of persons from whom a jury list is drawn and (2) the percentage which his race constitutes of the jury list which is thereafter compiled”. (Emphasis supplied.)
A case not cited by the majority but certainly in point is Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967). There in a per curiam opinion the Supreme Court held the case to be indistinguishable from Whitus v. Georgia. It found that Negroes constituted 24.4 per cent of the taxpayers from whom the jury list was drawn, but “* * * only 4.7% of the names on the grand jury list and 9.8% of the names on the traverse jury list * * * ”,
The majority of our court has decided this case under its belief that in none of these Supreme Court cases “ * * * was an indictment quashed, or a conviction overturned on the mere showing that a venire was improperly constituted without a showing of exclusion of Negroes from jury service”. The majority admits, however, that “ * * * in a number of the cases the court discusses in some detail the manner in which the general venire was selected”, and in Footnote 3 states categorically : “In some the selection of the general venire is under consideration. In others a special venire might be involved.” (Emphasis mine.)
The reasoning of the majority is unsound, and the premise upon which it is based is untenable, as is clearly shown by the opinions of the United States Supreme Court and our own positive, specific codal provisions. This is another case in which I believe the majority opinion merely causes delay in criminal justice, for on writ application the United States Supreme Court will undoubtedly grant the hearing to which the defendant is entitled by simple *587per curiam treatment with citation of pertinent case law, as has occurred recently in a number of cases in which we have failed to follow clear and definite United States Supreme Court decisions.
We do not have before us the question of whether this general venire was in fact illegally formed. We review an erroneous ruling by the trial court which denied the defendant the right to attempt to make the required prima facie showing that this general venire was unconstitutionally selected. For these reasons we should reverse and remand, and I respectfully dissent.