(dissenting). It is my opinion that the judgment should be affirmed on the point discussed in the Majority Opinion; i.e., the selection of the jury that tried the case.
The appellant had successfully quashed the original jury panel solely because there were no Negroes selected on said panel. The thirty-two white persons on the original jury panel were not individually disqualified: the only reason for quashing the panel was that there were no Negroes on the original panel.
The Sheriff then selected six Negroes for the new panel and placed them at the top of the list, and some of the Negroes served on the trial jury that convicted the appellant. The percentage of six Negroes to thirty-two white persons was a greater percentage of Negroes to whites than the percentage of Negro poll tax holders bore to the percentage of white poll tax holders in Craighead County; so surely the appellant received more than a fair percentage of Negroes on the panel and also more than a fair percentage of Negroes on the jury that actually tried and convicted him.
I think the Sheriff followed the exact requirements of Act No. 93 of 1961, as now found in Ark. Stat. Ann. § 42-1912.1-2 (Supp. 1963). Prior to the said 1961 Act the Jury Commissioners would have been reassembled to select a new panel of jurors (Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95). That opinion was delivered on January 9, 1961, and the Legislature then passed Act No. 93 of 1961, approved February 16, 1961, to eliminate the delay that would be incidental to requiring the Jury Commissioners to be reassembled. The said 1961 Act changed the rule stated in such cases as Maxwell v. State, 217 Ark. 691, 232 S. W. 2d 982. Under the plain wording of the said 1961 Act, the Sheriff had the right to select the thirty-two white persons that he did, and no error was committed in that regard.