(concurring in part and dissenting in part):
I respectfully dissent in part. It is difficult to understand just what the majority opinion holds, much less what it says. As near as I am able to discern, the holding is two-fold: First, that the jury commissioners used an impermissible standard of selection, i. e., that jurors be able to understand jury proceedings; and second, the key man method used to compile the jury list, entirely aside from the intelligence standard, produced a result which violated the fair cross section of the community requirement. If the first holding is valid, then conceivably the second is obiter dictum under the sweep of the opinion. However, I do not believe the first to be valid absent a showing that the jury list did not represent a fair cross section of the community. Stated differently, I believe the law permits some care in selection to the end that the more competent citizens are selected for the jury list if the end result is a fair cross section of the community. This was the teaching of Glasser v. United States, 1942, 315 U.S. 60, 84-86, 62 S.Ct. 457, 86 L.Ed. 680, and I find nothing in the 1957 Civil Rights Act amendment to the jury competency statute, 28 U.S.C.A. § 1861, to indicate that Congress has departed from this common sense dictate.
The statute, in pertinent part, makes a citizen competent to serve as a juror unless he is unable to read, write, speak and understand the English language. § 1861(2). This standard is subjective in nature and Congress would hardly have been incapable of speaking in more precise terms had this been intended as a maximum literacy standard. The fact is however that Congress did not adopt this standard in 1957 when it had the civil rights question before it. It was adopted in 1948. Congress merely eliminated any state standard nexus for federal jurors in 1957. Prior to 1948, only state standards were used. By the 1948 amendment, this federal literacy standard was adopted but no person could be a federal juror who was disqualified as a state juror, and it was this latter proviso which was eliminated by the Civil Rights Act of 1957. The idea was to have uniform national standards for federal jurors as distinguished from state by state variances.
Moreover, I had hoped that an en banc court would make some contribution to the administration of criminal justice by establishing a definite rule to which District Courts might look in supervising the making of jury lists. Every criminal defendant is entitled to a fair trial before a jury selected under a fair system but the public is entitled to the protection that comes from the imposition of punishment on those found guilty after such a trial. Stability in the law is more than a desirable end. It is a sine qua non of the law. Long delays in the termination of litigation lends little dignity to or majesty of a system of law, and the confidence of the public in the law is surely not bolstered by such delays.1 Thus it is *79imperative that the question be settled as to what constitutes a fair jury system. The opinion of the majority largely skips over this fundamental problem by not reiterating the Glasser principle and leaving the matter there. Instead it makes way for more appeals if it should appear that jury commissioners have used the subjective literacy standard of the statute, supra, or a key man approach to selection. I simply cannot believe that such a strict or technical approach is in order where the result is a jury list which reflects a fair cross section of the community.
By way of a preliminary summation it is my view that, assuming a list comprising a fair cross section of the community, the holding that the jury commissioners acted improperly in selecting jurors of a degree of intelligence which would enable them to understand jury proceedings is without foundation in law. A showing of discriminatory use of such a standard is quite another question and is not present here. This majority holding is necessarily based on a conclusion that the federal juror qualification standards of § 1861, are maximum standards. Such a conlusion, as we shall see, is for all intents and purposes an Act of Congress shrouded in the cloak of a judicial decision. It is apparently based on a syllogism of properly equating the minimum standards of § 1861 with uniform or national standards for federal jurors, then improperly equating uniform standards with maximum standards, and ending with the result that they are all the same. I do not believe that this type of reasoning can stand the light of day even in these cases which arise out of prosecutions for conduct stemming from civil rights activities. Justice Cardozo quoted Justice Holmes as saying: “I recognize without hesitation that judges must and do legislate, but they do so only interstitially; * * * ” Nature of the Judicial Process, Selected Writings of -Benjamin Nathan Cardozo, Hall 1947, p. 134. The majority has exceeded this sound rule in these cases with respect to the statutory literacy standard.
There is substance, on the other hand, to the question resting on the result which obtained from the selection system used by the jury commissioners. The number of Negroes selected was marginal at best, but the answer must be determined by whether there was an impermissible departure from the cross section of the community requirement.2 The government at first denied that there was such a departure and I agree. However, after panel submission of the cases, and prior to the en banc arguments, it was announced that new trials should be granted to appellants through an exercise of the court’s supervisory power. The position of the government in this respect, apparently out of an abundance of caution, is that fair trials may not have been accorded appellants. The key man system used by the Commissioners was said to be proper but the unexplained result of so few Negroes being added in the 1959 revision of the jury list gave the government pause. The position of the government was stated as follows:
“ * * * these cases present a situation in which the jury list was not made up with any purpose of precluding Negroes from service. Nor, since Negroes regularly serve as both grand and petit jurors, can it be concluded that, purpose aside, the natural conse*80quence of the method by which jurors were chosen must have resulted in such preclusion. Yet the facts remain that, of the jurors added in the 1959 revision, only .7% were Negroes, and no attempt to add more jurors was made between 1959 and 1963.
******
“ * * * The failure to take such action together with trial of these cases before petit juries upon which there were in fact no Negroes creates a possibility of injustice sufficient to warrant reversal of the trial verdicts.” (Supp. brief, pp. 34-41)
This means that the government, while not confessing error, nevertheless feels that new trials are required. It would be unusual to say the least for a court to fail to honor such a request on the part of the prosecution.
As to the indictments, it is the position of the government that no harmful defect inhered in the grand jury selection process as applied to these appellants. Five Negroes served on the grand jury which indicted them and it is urged that no relief through such an exercise of the courts supervisory power is indicated from the standpoint of the indictments.3 I agree. I would thus grant new trials, except as to Slater King. It will be seen that I would reverse his conviction for lack of evidence and direct that his indictment be dismissed unless the government can produce additional evidence within a reasonable time to support the charge against him. I would let the other indictments stand.
I.
A statement of the facts would seem to be in order. These are appeals from perjury convictions. The appeal of Miss Rabinowitz was heard by one panel of the court while the consolidated appeals of Mrs. Jackson, Robert Thomas, Reveerend Wells, Slater King and Thomas C. Chapman were heard by another panel of the court. All were later heard en banc and the opinion now under consideration is pursuant to that en banc consideration.
Miss Rabinowitz was charged with testifying falsely before a grand jury in violation of 18 U.S.C.A. § 1621. The false swearing allegedly consisted of statements under oath that she did not observe picketing at Carl Smith’s Food-land Store, Albany, Georgia, on Saturday, April 20, 1963; that she did not remember observing the picketing; and that she was not present at the scene of the picketing. The jury found her guilty, and she was committed as a youth offender under 18 U.S.C.A. § 5010(b) to the custody of the Attorney General for treatment and supervision until discharged by the Youth Correction Division of the Board of Parole.
The background of the cases is found in the testimony of the member of the staff of the Criminal Division of the Department of Justice who was present during the grand jury proceeding which gave rise to the indictments of Miss Rabinowitz and the other appellants. His testimony, in pertinent part as given on the trial, out of the presence of the jury, to establish that the false swearing was as to a material matter follows:
« * * * The last week of July, 1963 I was appointed as a special attorney to assist the United States Attorney for the Middle District of Georgia in the presentation of matters which were to come before the grand jury meeting for the Middle District of Georgia which was to convene on July 29, 1963.
******
«* * * The grand jury at this time was investigating a violation of *81Title 18 U.S. Code Section 1508, which is the 'obstruction of justice’ statute, * * *
“ * * * The grand jury at this time was investigating the economic boycott, picketing, which had taken place against Mr. Carl Smith at his Foodland Super Market in April of 1963. The investigation had disclosed that Mr. Smith had sat as juror in a civil action involving a Mr. Charles Ware and L. Warren Johnson during April of 1963, and that as a result of his having assented to the verdict in that case on which he was a juror the boycott and picketing was instituted against him. Preliminary investigation disclosed that he was, as a result of his service as a juror, subsequently put out of business * * *.
“Mr. Smith was sitting as a juror in the Federal Court of the Albany Division of the Middle District of Georgia.”
The records disclose that Dr. William G. Anderson, Robert William Colbert and Luther Woodall, Jr. were indicted as a result of this investigation for conspiring to violate Title 18 U.S.C.A. § 1503. The picketing and economic boycott took place in Albany, Georgia. The grand jury investigation and subsequent trial of appellant took place in Macon, Georgia, in the same district but in another division of the court some one hundred miles from Albany. The grand jury was drawn from the Macon Division.
Miss Rabinowitz testified before the grand jury. After answering preliminary questions concerning her employment in the Albany area by the Student Non-Violent Coordinating Committee, a civil rights group, and the work of the Albany Movement, also a civil rights group, she stated that she knew the location of the Carl Smith store but that she could not specifically remember the occasion when the store was picketed. She stated that she remembered hearing about it, and she also remembered hearing about the Ware v. Johnson case out of which the picketing allegedly arose. ■ She denied that she was standing across the street from the store with Reverend Samuel Wells while the picketing was taking place. On another occasion she stated that she did not remember seeing the picketing, and that she was quite sure that she would have remembered seeing it if she had been present, or if she had been directing the picketing. On still a third occasion she testified that she did not remember being at the scene of the picketing, and then that she was not present at the picketing.
On the trial, Mr. Smith the owner of the store, his son-in-law and his meat department manager all testified that they saw Miss Rabinowitz across the street from the store at the time, standing with Reverend Wells, and that she was directing the picketing during the first phase of it which was in the early afternoon of Saturday, April 20, 1963. The son-in-law testified that Mr. Smith directed him to make a picture of the group including appellant, and that appellant ran out of the line of the camera as he approached her, and he was unable to get her picture. Mr. Smith recognized appellant some three months later upon meeting her accidently on the street in Macon during the grand jury investigation. The son-in-law stated that he recognized her in the hall of the federal building. The recognition in each instance was before their grand jury testimony. The meat department manager did not testify before the grand jury but did identify appellant from the witness stand on the trial of the case. He had previously identified her from a group of pictures shown him by an agent of the Federal Bureau of Investigation.
To the contrary, appellant offered twelve witnesses, ten of whom testified that it was Miss Joyce Barrett who was present at the picketing and not appellant. One of the twelve witnesses was not present during the first phase of the picketing, and one testified that she saw Miss Barrett only during the second phase. Miss Rabinowitz denied being present. Reverend Wells did not testify. Miss Barrett admitted her presence and the testimony, almost without contradic*82tion was that there was only one white girl present at the picketing. Miss Barrett was not indicted. Miss Rabinowitz also introduced the testimony of five character witnesses.
The testimony for Miss Rabinowitz was somewhat weakened by the fact that the FBI agent in charge of investigating the alleged obstruction of justice had interviewed several of her witnesses shortly after the picketing and boycott, and the investigation did not disclose the presence of Miss Barrett. She too was a civil rights worker in Albany at the time. Several hundred witnesses had been interviewed by the FBI in connection with its investigation and the testimony was that the sum of the investigation showed only Miss Rabinowitz as being present at the scene, and not Miss Barrett. Moreover, the agent testified that Miss Barrett had gained some fifteen to twenty pounds in weight, and had cut her hair short and dyed it black during the interim between the ..picketing and the trial. This change made her more nearly resemble Miss Rabinowitz, and it appeared that most of Miss Rabinowitz’s witnesses made their identification as between her and Miss Barrett shortly before the trial. There was, of course, other evidence, and the case, like the others, was hard fought by able counsel in a trial supervised in an exemplary manner by the trial judge.
The consolidated appeals of Mrs. Jackson, Robert Thomas, Reverend Wells, Slater King, and Thomas C. Chapman from perjury convictions involve the same grand jury investigation. They, along with others, were called as witnesses before the federal grand jury in Macon. They, along with others, attended a meeting in the office of C. B. King, Attorney at Law, Albany, Georgia, relative to their appearance. These appellants were all interrogated before the grand jury about the meeting. The meeting took place on the afternoon of July 30. On the day of the interrogation, August 5, none was able to remember attending the meeting. The proof was clear, except as to Slater King, that they attended the meeting. The secretary and also the law clerk to Mr. King, the attorney, in whose office they met, testified for the government to this effect. Mrs. Jackson, and Messrs. Thomas and Chapman received probated sentences. Reverend Wells and Slater King were each sentenced to a year in prison.
Only Miss Rabinowitz, Mrs. Jackson and Mr. King contest the sufficiency of the evidence. Reverend Wells relies on the attorney-client privilege, and all rely, along with Miss Rabinowitz, on the contention that the grand jury and the petit jury were illegally composed. The appeal of Miss Rabinowitz contains seven additional assignments of error. None of these will be discussed in this dissenting opinion other than to say that each is without merit. Neither is there merit in any of the non-jury question assignments of the other appellants except that of Slater King on the insufficiency of evidence contention. That assignment of error will be considered before reaching the jury composition question since I would not dismiss the indictments.
THE SLATER KING QUESTION
After studying the records in these appeals, I am left with serious doubt that Slater King attended the meeting as such in the office of C. B. King, the attorney. He is a brother of the attorney with an office in the same building. He was called to bring chairs from his office into the law office and did so. There was no direct proof that he actually attended the meeting. The proof was that he was present during two or three trips with chairs; that he greeted others present; and also answered the telephone while there. There were two offices and he was in and out of both. In view of the doctrine that stricter proof is required in a perjury case, I would reverse as to Slater King. The proof in a perjury case must be strong, clear, convincing and direct. Paternostro v. United States, 5 Cir., 1962, 311 F.2d 298. Cf. Beckanstin v. United States, 5 Cir., 1956, 232 F. 2d 1; Cuesta v. United States, 5 Cir., 1956, 230 F.2d 704. There is no such *83proof as to Slater King attending the meeting and thus his perjury conviction must fail.
THE JURY COMPOSITION ISSUE
The appeal of the other appellants must stand or fall on the question of the illegality of the jury list. I would hold that they failed in their burden of establishing that the list was not composed in accordance with the jury selection statutes, 28 U.S.C.A. §§ 1861-64 4 or the controlling decisions of the Supreme Court from either a constitutional or a statutory standpoint. I would however grant new trials under the supervisory power of the court as suggested but this will leave the indictments standing. New trials under only the supervisory power brings the literacy question, as we shall see, into sharp focus. Is the result to be tested by proportions of population based on race only, or race plus literacy ?4a
The Macon Division of the Middle District is comprised of eighteen Georgia counties. 28 U.S.C.A. § 90(b) (2). The jury list was compiled in 1959. It is the position of appellants that the illegality of the list, while not intentional, was nevertheless caused by the use of an improper selection system to the end that Negroes were included only to a token extent and hence the system was discriminatory.
The impropriety is said to flow from a breakdown in the key man system of compiling the list of prospective jurors in that few Negro key men were contacted, and from too strict an intelligence standard. It is urged that a prima facie case was established by the wide discrepancy between the number of the Negroes in the Macon Division and the number on the jury list. Negroes made up 5.9 percent of the jury list and 34.55 percent of the adult population of the Division over age 21 according to the 1960 census. This is the issue; and it turns on whether this disparity was explained or offset by other factors.
It has long been settled that the jury list must be representative of the community, Smith v. State of Texas, supra; the concept is that it should reflect a cross section of the community rather than being the organ of some special group or class. Glasser v. United States, supra. The Supreme Court stated in Glasser that so long as this requirement is observed, the jury commissioners may exercise discretion in making the list to the end that competent jurors are selected. I find nothing in the jury selection statutes, §§ 1861-64, or in their legislative history which avoids this teaching, or which in anyway militates against it. Indeed, the principle was reiterated by the Judicial Conference of the United States in approving in September, 1960 *84a report of the Judicial Conference Committee on the operation of the jury system. 26 F.R.D. 409, 421. The report, taking note of the 1957 amendments, makes the following recommendations with respect to selecting jurors for the list:
“I. In order that grand and petit jurors who serve in United States district courts may be truly representative of the community, the sources from which they are selected should include all economic and social groups of the community. The jury list should represent as high a degree of intelligence, morality, integrity, and common sense as possible.
“II. The choice of specific sources from which names of prospective jurors are selected must be entrusted to the clerk and jury commissioner, acting under the direction of the district judge, but should be controlled by the following considerations: (1) the sources should be coordinated to include all groups in the community; (2) economic and social status including race and color should be considered for the sole purpose of preventing discrimination or quota selection; * *.
“III. The statutory requirement that federal courts must observe the qualifications and exemptions prescribed for jurors in the state courts has been abandoned, the jurors should now be called without regard to state qualifications.
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“V. In order to determine whether persons under consideration for selection as jurors possess the required qualifications, it is recommended that, when practicable, the practice should be followed in every district of requiring each prospective juror to answer a questionnaire and, where conditions permit, to be personally interviewed, except that in the case of prospective jurors who appear to be clearly qualified or disqualified on the face of the questionnaire, personal interviews may be dispensed with. Where such practice is followed, no name should be placed in the jury box or wheel, or added to the jury lists, until the jury commission, from its investigation, is satisfied that the juror is qualified. An example of a questionnaire and form of letter enclosing it, prepared by the Committee, is included in the Report. (See Exhibit 1.)” [Form of questionnaire includes question: “What education have you had ?”]
But now the majority holding on the literacy standard rejects Glasser and also this Judicial Conference recommendation that: “The jury list should represent as high a degree of intelligence * * * as possible.” This is palpable error.
I would apply these settled principles to the facts here. The last previous jury list was compiled in 1953. 1,897 names were on that list. The Georgia law was then amended making women eligible for jury service and the names of 308 women were added to the list. There were 177 Negroes on that list. With the adoption of the 1957 amendment separating federal jurors from state standards, a new jury commissioner was appointed to work with the clerk in the preparation of the 1959 list. Their work resulted in a list of 1,985 names. There are no racial designations on the list but an examination of the questionnaires returned by prospective jurors, which called for information as to race as well as age, sex, occupation, citizenship, health and literacy, disclosed that 117 or 5.9 per cent of the total of 1,985 jurors were Negroes.
The jury commissioner testified that the 1959 list was prepared pursuant to these recommendations of the Judicial Conference. His testimony and that of the clerk and a deputy clerk who assisted in the compilation of the list was that they sought the names of persons throughout the Macon Division, white as well as Negro, for jury service. They used the key man system recommended by the Judicial Conference. 26 F.R.D. 425. Their standard was to find prospective jurors able to understand jury proceedings.
The commissioner and the clerk worked under the supervision of the District *85Court and became familiar with the statutory qualifications for jurors as a beginning. They then, after investigation, removed the names of all persons who had moved, or were deceased or were mentally or physically infirm from the 1958 list. This left 1,485 names. Then other names were selected by inquiry over the Division in person and by letter. Questionnaires were then sent to the remaining names on the 1953 list and the new names that had been acquired with the result that between four and five thousand questionnaires were sent to prospective jurors. No evidence was available as to how many questionnaires went to Negroes. No effort was made to prorate jurors on the basis of population as between the races. The commissioner, the clerk and the deputy clerk all testified that they had no preconceived notion as to how many jurors should be Negroes. In the words of the commissioner:
“ * * * I said we attempted to be sure that all factions and groups within the community were represented, occupation-wise, sex and racially-wise, but without attempting to measure it by the population precisely or to have any given percentage represented by any vocational or occupational group or by race or sex.”
At any rate, a total of 2,338 persons returned the questionnaires, all of which were on file in the clerk’s office at the time of the trial. 353 of these were not placed on the list for one reason or another. 297 of these were white, 53 were Negro and the race of 3 was unknown. 113 of the 117 Negroes on the 1959 list were carryovers from the 1953 list while 4 were new. Of the Negroes in the total of 53 left off, 7 were new to the list and the others were on the 1953 list.
The clerk testified that it was difficult to get qualified Negroes because they were like women; they did not want to serve on the jury. The clerk also testified that in the main the jurors selected were in the age group of 25 to 50. He indicated that school and military service rendered many near the age of 21 unavailable for jury service, and thus it was not feasible to include persons in this age group on the list. In view of this posture of the selection process, I will consider the available census data as it relates to the adult population in the Macon Division age 25 and over. Some of the data to be referred to was submitted in the District Court where it was agreed that census data might be considered by way of judicial notice, and the additional data on the appendix attached hereto was compiled from census bureau records.
The burden was on appellant to make out a prima facie case of discrimination against Negroes in the compilation of the jury list. This could be established by showing intentional systematic exclusion of Negroes from the list. Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664; Ex parte Virginia v. Rives, 1880, 100 U.S. 313, 25 L.Ed. 667. It might also be established, and it is conceded that the exclusion here was not intentional, by simply showing that the selection system used was such as resulted in discrimination in that only a token number of Negroes were included on the list. This is a result test and cause or fault is not important. See Cassell v. State of Texas, 1950, 339 U.S. 282, 286, 70 S.Ct. 629, 94 L.Ed. 839; and cf. systems used in Avery v. State of Georgia, 1953, 345 U.S. 559, 561, 73 S.Ct. 891, 97 L.Ed. 1244; and Hill v. State of Texas, 1942, 316 U.S. 400, 404, 62 S.Ct. 1159, 86 L.Ed. 1559.
The test to be applied to this latter aspect of jury system discrimination— mere token inclusion because of a faulty system — was described in Hill v. State of Texas, supra, as a matter of determining whether the course of conduct of the jury commissioners operated to discriminate. In United States ex rel. Seals v. Wiman, 5 Cir., 1962, 304 F.2d 53, this court said the test was to be made largely on the basis of objective results. The Third Circuit Court of Appeals has described the test in terms of negligence— federal jury officials may not exclude any economic, social, religious, racial, political or geographical groups either in*86tentionally or through negligence. Dow v. Carnegie-Illinois Steel Corporation, 3 Cir., 1955, 224 F.2d 414. And a good summary of the problem which comes from mere token inclusion of Negroes is set out in United States ex rel. Seals v. Wiman, supra:
“Actually, whether the presence of a few Negroes on a venire containing many names is evidence tending to prove or to disprove racial discrimination depends upon the proportions of Negroes and whites who are qualified for jury service. Reece v. [State of] Georgia, 1955, 350 U.S. 85, 87, 88, 76 S.Ct. 167, 100 L.Ed. 77. Fairness in selection does not require proportionate representation of races upon a jury venire. Akins v. [State of] Texas, 1945, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692. It is nonetheless true that very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion of Negroes from jury service. Brown v. Allen, 1953, 344 U.S. 443, 471, 73 S.Ct. 397, 97 L.Ed 469. It was there said: ‘Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. [State of] Texas, 311 U.S. 128 [61 S.Ct. 164, 85 L.Ed. 84].’ * * * ” 304 F.2d at 66-67.
The rule that racial as well as other groups must be represented on a jury list so as to afford an impartial jury drawn from a cross-section of the community was explained in Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181. There a jury list from which all persons who worked for a daily wage were excluded was declared illegal. The court said:
“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. Smith v. [State of] Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 [86]; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680 [707]. 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.
“The choice of the means by which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers. * * * ” Id. at 220, 66 S.Ct. at 985, 90 L.Ed. at 1184-1185.
The most recent Supreme Court decision on the question presented is Swain v. State of Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. There the jury commissioners, in selecting names for the jury list, made personal inquiry somewhat on a key man basis and also used various lists as sources. The resultant jury venires contained only 10 to 15 per cent Negroes as against Negroes making up 26 per cent of those persons in the population eligible for jury service. The court held that petitioner failed tó carry the burden of proof that the system was illegal, saying:
“ * * * Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. ‘Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of *87proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color proportional limitation is not permissible.’ Cassell v. [State of] Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631-632, 94 L.Ed. 839, 847 (opinion of Mr. Justice Reed, announcing judgment). We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. See Thomas v. [State of] Texas, 212 U.S. 278, 283, 29 S.Ct. 393, 394, 53 L.Ed. 512 [514]; Akins v. [State of] Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. [State of] Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. Here the commissioners denied that racial considerations entered into their selections of either their contacts in the community or the names of prospective jurors. There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race. We do not think that the burden of proof was carried by petitioner in this case.” Id. at 208-209, 85 S.Ct. at 829, 13 L.Ed.2d at 766.
Here, of the 34.55 per cent of the population eligible under federal law, the list included 5.9 per cent Negroes. Correlated to the population 25 years old and over, these figures are 5.9 per cent on the list as against 34.02 per cent Negro population. The position of appellant is that such a disparity calls for an explanation; another way of stating that a prima facie case of illegality was made out as was the case in United States ex rel. Seals v. Wiman, supra.
In Seals the grand jury which indicted the defendant included eighteen persons, none of whom were Negroes. Here the grand jury included five Negroes. The petit jury in Seals included no Negroes and that was the case here. In Seals the jury rolls between September 30, 1955 and September 30, 1959 contained a total of 32,930 names of which only 427 or 1.3 per cent were Negroes. Between October 3, 1948 and July 1, 1955 jury panels contained 16,798 names of which 179 were Negroes or 0.94 per cent. According to the 1950 census 31.7 per cent of the population of Mobile County between ages 21 and 65, the Alabama age limit for jury service, was Negro. However, in Seals, the court pointed out that there was no testimony that, on the average, Negroes in Mobile County were less qualified for jury service than white. Indeed, there was testimony to the contrary. Here, there was testimony that Negroes were less qualified, and the census records, to be discussed infra, see appendix, would belie an assertion to the contrary.
These statistics are to be compared with those under consideration in this case, but before doing so we must again consider the literacy question — whether the racial proportions of the population may be modified by a literacy standard. The statute, § 1861, footnote (4), supra, sets the qualifications for jury service generally as a citizen of the United States who has attained the age of 21 years, and who has resided for one year within the judicial district unless he has been convicted of a disqualifying crime or is unable to read, write, speak and understand the English language, or is in*88capable, by reason of mental or physical infirmity, of rendering efficient jury service.
The Judicial Conference Report adopted some three years after the 1957 amendment on which the majority relies treated these literacy qualifications as minimum standards only by pointing out that the jury list may be upgraded in intelligence so long as the result is a jury list representing a fair cross section of the community. The statute itself demonstrates that the standards are minimum. They are stated negatively; all are competent except those failing to meet these standards. § 1861(3) provides that jurors are to be efficient. This again is subjective, and shows the minimum approach of the statute.
There is absolutely nothing in any legislative history to support a holding to the contrary. The 1957 amendment did no more than remove the last vestige of state law qualifications for federal jurors. This was desirable in the name of uniformity for all federal courts, but the real reason was to make more Negroes eligible to serve as jurors. It was no new civil right other than in the sense of a general improvement in the status of the Negro citizens. No one would contend that any particular person has a right to be a juror. Only a small percentage of those eligible are placed on the list. The real right involved was that of providing jury systems representing a fair cross section of the community. Nothing short of judicial legerdemain could transform the minimum uniform standards of the statute into maximum standards. Having concluded that the statutory qualifications are minimum only, I would hold that the intelligence standard used was reasonable — to select jurors who could generally understand court proceedings tried to a jury.5
It thus seems clear that the racial proportions of the population may be modified by a reasonable literacy standard in making the result test in jury discrimination cases. And in considering the contentions that the source method was inadequate and the result achieved was improper, I would make such a modification.
Appellants buttress their claim of exclusion on the fact that fewer inquiries were made of Negroes than of whites for the names of prospective Negro jurors. The commissioner, clerk and deputy clerk were all white and their testimony was that they mainly inquired of white sources although they could remember some inquiries of Negroes. The source method used was haphazard6 but the case should stand or fall on the disparity, if unexplained, between the percentage of Negro population and the number of Negroes on the jury.
There is no evidence as to how many questionnaires were sent to Negroes and not returned, if any, and the questionnaires were not available on the trial. It was agreed that census data might be considered; hence, was the disparity considered in the light of the census data sufficient to require explanation?7 The disparity based on pure population is extreme and would, without more, be proscribed. However, in the light of the disparity standard in Swain v. State of Alabama, supra, related to any reasonable *89juror intelligence standard — the disparity is overcome. In my view it is extremely unreasonable to relate the question to pure racial proportions where it is known that a high rate of illiteracy prevails in the population. It is unrealistic and unnecessary; in fact it would be fatal to the jury system to require that illiterates be permitted to serve on juries. The law makes no such requirement, and illiterates should not be counted in making a result test.
The question should reduce itself to whether the result as to the number of Negroes on the list, standing alone, made out a prima facie case. Stated differently, was the disparity which the result reflected sufficiently explained?
The jury commissioner, a citizen well versed in Georgia educational standards, stated that a smaller percentage of Negroes than whites were qualified for jury service, and the figures on the attached appendix demonstrate this fact in a spectacular way. There is no evidence as to a specific educational level having been used but the intelligence level used in seeking jurors who would understand jury proceedings is undisputed, and we think there is a relationship between the two. As the appendix shows, Negroes comprised only 10.3 per cent of the total population 25 years and over who had completed four years of high school or more in 1960; 13.6 per cent of those who had completed one to three years of high school or more, and 15.7 per cent based on completing eight years of school or more. The figure for the sixth and fifth grades were 21.0 per cent and 24.3 per cent, respectively. See note to appendix. These figures are to be compared with the 5.9 per cent of Negroes on the jury list. In sum, the figures on the appendix show less than a 10 per cent disparity even when related to an eighth grade education.
In United States v. Henderson, 7 Cir., 1962, 298 F.2d 522, see footnote 31, majority opinion, a jury selection system was used whereunder prospective jurors were required to answer a questionnaire in their own handwriting. The questionnaire required that the number of years of primary, high school and college education be indicated by the circling of appropriate figures on the form. An eighth grade education standard was one factor used in the selection process. The court approved this on the basis that the statute including the 1957 amendment provided minimum and not maximum standards, and specifically, envisioned jurors who could render “efficient” service. This was a salutary system. The majority seems to approve it but reverses nevertheless. In another part of the opinion the majority seemingly approves a sixth grade standard but only if the district court so orders. This recession from the flat holding that the literacy standard of § 1861 is a maximum requirement is the logical recognition that must come from the subjective language of the statute and from the fact that it sets a minimum standard only.
These Georgia educational attainment figures, of course, demonstrate a fact in which no enlightened society could take pride. Time and an improved system of education will cure this ill. However, this is a jury selection problem and we are of the view that the racial proportions here, reduced, as they must be if the jury system is to remain vigorous, to any reasonable educational standard are not so disparate as to make out a prima facie case of illegality in the compilation and maintenance of the jury list in question. A precise educational standard for measuring what the jury commission required — the ability to understand court proceedings in cases tried to a jury need not be set. There must be, in any event, a fair cross section of the community on the list. A high standard of literacy is to be desired if a fair cross section can still be obtained. Whether an eighth grade or some other standard is to be used as a factor in selecting jurors for the list depends on whether a fair cross section will be available under the system used. This is what Glasser points out. It is still the law, and good law, *90It makes the jury system both fair and viable.
In my view appellants failed to show a contravention of the Constitution or statutes in making the jury list here, but admittedly the result is close. The jury commissioners should not act grudgingly in placing Negroes on the list. A result such as this where such a minimal number of Negroes are found on the list is suspect and leads to challenges when challenges could be avoided through the confidence that would follow from a generous listing of Negroes.
The suggestion that the court order new trials because only 4 Negroes were added to the 1959 list while 553 whites were being added is reasonable. The selection system was not improper but its operation went wrong to the extent that the result is cast in considerable doubt. This holding alone will require that the jury list be revised to include substantially more Negroes. This is as far as I would go. The finding of a statutory violation because of the use of the intelligence standard by the majority is not only a quest for error; it amends the statute by raising the literacy standards from minimum to maximum. To go still further and dismiss the indictments when five Negroes served on the very grand jury that indicted the appellants is somewhat in the nature of a gratuity. Such overbreadth is unfortunate; it is not equal protection.
As stated, I would reverse as to Slater King for an insufficiency of evidence; I would reverse as to the other appellants for the purpose of affording them new trials as suggested by the prosecution.
Column APPENDIX 1 2 Persons 25 years & over
Total Population 25 years & over Completed fewer-than 5 school ' years Completed 5 yrs. or more (i. e. meets U.S. Army standard of "functionally literate") Completed 6 yrs. or more (I. e. meets standard of Civil Rights Act of 1964) Completed 8 yrs school or more Completed 1 to 3 yrs high school or more
Baldwin 22,066 7,405 14,661 13,021 9,330 7,513
Bibb 73,819 11,440 62,379 57,803 46,185 40,601
Bleckley 4,742 1,305 3,437 3,083 2,237 1,770
Butts 4,527 1,111 3,416 3,078 2,283 1,785
Crawford 2,692 772 1,920 1,662 1,059 764
Hancock 4,475 1,373 3,102 2,636 1,673 1,316
Houston 17,950 2,197 15,753 15,016 13,079 11,766
Jasper 3,158 844 2,314 2,074 1,463 1,165
Jones 4,091 1,024 3,067 2,748 1,952 1,609
Lamar 5,282 1,053 4,229 3,845 2,840 2,384
Monroe 5,085 1,195 3,890 3,530 2,661 2,134
Peach 6,531 1,653 4,860 4,474 3,589 3,078
Pulaski 4,156 1,083 3,073 2,800 2,125 1,776
Putnam 3,786 928 2,858 2,524 1,824 1,532
Twiggs 3,469 1,210 2,259 1,955 1,246 963
Upson 12,784 2,797 9,987 9.043 6,559 5,196
Washington 9,325 2,768 6,557 5,865 4,250 3,405
Wilkinson 4,617 1,164 3,453 3.043 2,138 1,752
Total 192,537 41,322 106,493 90,509
*919 10 11 12 Non-White 25 years & over 13 14
Completed 4 yrs. of high school or more Total NonWhite Population 25 years & over Completed fewer than 5 school years Completed 5 yrs. or more (i. e. meets U.S. Army standard of "functionally literate") Completed 6 yrs. or more (i. e. meets standard of Civil Rights Act of 1964) Completed 8 yrs school or more Completed 1 to 3 yrs high school or more Completed 4 years of high school or more
4,404 7,922 4,059 3,863 3,140 1,619 1,143 493
25,713 22,508 8,090 14,418 12,180 7,400 5,775 2,602
959 1,099 680 419 311 127 71 39
1,165 1,689 790 899 709 356 255 173
427 1,250 600 650 516 238 145 69
713 2,898 1,224 1,674 1,301 586 421 207
7,464 3,360 1,699 1,661 1,359 706 516 244
758 1.460 687 773 617 281 171 72
876 1,749 763 986 806 415 307 160
1,432 1,703 672 1,031 869 505 381 200
1,281 2,106 909 1,197 988 539 354 158
1,925 3,256 1,444 1,812 1,552 1,026 817 483
863 1.461 759 702 562 281 188 90
877 1,826 745 1,081 851 440 307 130
522 1,802 925 877 703 323 197 83
3,060 3,066 1,537 1,529 1,193 549 304 137
1,825 4,564 2,309 2,255 1,795 891 660 240
944 1,774 822 952 760 427 302 119
65,493 28,714 36,779* 30,2122 16,709 3 12,314* 5,699s
Negroes constitute 24.3% of those persons in the Middle District of Georgia 25 years old or over who have completed 5 years of school or more.
Negroes constitute 21.9% of those completing 6 years of school or more.
Negroes constitute 15.7% of those completing 8 years of school or more.
Negroes constitute 13.6% of those completing i to 3 years of high school or more.
Negroes constitute 10.3% of those completing 4 years of high school or more.
NOTE: The above figures are taken or derived from United States Census of Population: 1960, Vol. I, Characteristics of Population, Part XII, Georgia, pp. 277 — 90, 333-43. The Bureau of Census lists no separate total for those who have completed 6 years of school, but rather lists those who have completed "5 and 6" years. Consequently, the figures in columns 4 and 11 are based on the assumption by appellant that, in the five and six •year category, half finished five years and half finished six.
. As examples of unusual delay, see the following cases heard en banc along with Rabinowitz and Jackson: United States of America, ex rel. Labat and Poret v. Bennett, Warden, 365 Cir., 698 *79F.2d -, appellants convicted by a jury in 1953 of rape and sentenced to death; Scott v. Walker, 358 F.2d 561, appellant sentenced to death in 1958 for rape; Brooks v. Beto, 5 Cir., -F.2d-, appellant sentenced to fifty years in 1959 for rape; Davis v. Davis, Governor, 361 F. 2d 770, sentence of death in 1959 for the murder of a police officer.
. The standard for determining the federal constitutional question of systematic exclusion with respect to federal or state juries is also the standard for determining whether there has been a departure from the federal statutes governing jury lists —Does the jury list represent a fair cross section of the community? Smith v. State of Texas, 1940, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84; Glasser v. United States, supra.
. The grant of a new trial through the supervisory power of the court avoids the dismissal of the indictments which would follow from a finding of a defective system resulting from a statutory violation. Ballard v. United States, 1946, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181. Thus, whether the jury list failed to include a fair cross section of the community is an important question. As noted, the majority decision finds two statutory violations.
. 28 U.S.C.A. § 1861:
“Any citizen of the United States who has attained the age of twenty-one years and who has resided for a period of one year within the judicial district, is competent to serve as a grand or petit juror unless—
“(1) He has been convicted in a State or Federal court of record of a crime punishable by imprisonment for more than one year and his civil rights have not been restored by pardon or amnesty.
“(2) He is unable to read, write, speak, and understand the English language.
“(3) He is incapable, by reason of mental or physical infirmities to render efficient jury service.”
Subparagraph 4 of this statute was repealed by the 1957 amendment, Pub. L. 85-315, Part V, § 152, 71 Stat. 638. That paragraph provided that no person might serve as a federal juror who was incompetent to serve as a juror under the law of the state in which the district court was held.
a. The term “literacy” is used in this opinion in the sense of the ability to read, write and speak the English language. 28 U.S.O.A. § 1861(2). It also embraces the requirement of the same statute that a juror be able to “understand” the English language. This adds an “intelligence” standard to a “literacy” requirement, and renders the test extremely subjective in nature. See Lassiter v. Northampton County Board of Elections, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, 1077 for the difference in the terms.
. There is a subtle racial overtone in the mention by the majority of the fact that race was referred to on the questionnaires sent to prospective jurors. It is necessary to include Negroes where they are a significant part of the community. Information as to race is necessary to make certain that the resulting list does include Negroes. The Judicial Conference recognized this. Report, supra, 26 F.R.D. p. 421.
. A better system might be devised by the impartial use of voter lists, tax rolls, automobile registration rolls, and the like in selecting those prospective jurors to whom questionnaires are to be sent. Also, a Negro citizen on or assisting the jury commission might prove quite helpful.
. Persons under age 24 or 25 were not included on the list by the commissioners but such an age grouping is not unreasonable in view of the evidence that education and military service impedes the use of persons younger.