(concurring in the result):
I concur in the result for the reason that the exclusion, as a class, of all daily wage earners deprived appellants of an impartial jury in violation of the due process and equal protection clauses of the Fourteenth Amendment. My concurrence, unlike the majority opinion, is not based on race. This special opinion is filed to outline my disagreement with the race premise of the majority opinion, and also for cautionary purposes with respect to some of the language of that opinion.
It is necessary first to separate the wheat of the majority opinion from the chaff. Three points may be taken as settled. One, this is not a grand jury case although a large portion of the majority opinion is focused in that direction. The Supreme Court ruled against appellants on the grand jury question years ago. Michel v. State of Louisiana, 1955, 350 U. S. 91, 76 S.Ct. 158, 100 L.Ed. 83. Two, the District Court did not rest its decision merely on waiver. It decided the case alternatively on waiver and on the merits. Third, the petit jury question was not asserted in the Supreme Court on the first appéal. The court was at pains to point out that no attack was made on the composition of the petit jury. Instead, that question was apparently saved under the piecemeal appeal practice now prevalent to be raised if need on another day. On the question of piecemeal appeals see Paige v. Potts, 5 Cir., 1965, 354 F.2d 212, Footnote 2; and cf. Marion v. Harrist, 5 Cir., 1966, 363 F.2d 139, where at least one constitutional question was held out for future use.
The only question for decision, assuming no waiver, and waiver is never a popular doctrine in a death case, is whether Negroes were deliberately and intentionally limited and excluded in the selection of petit jury panels in violation of the Constitution. This question was mandated to the District Court by the Supreme Court in 1960, over ten years after the commission of the crime in question.
The majority holds that appellants made out a prima facie case by showing a system which had not produced Negro jurors who actually served on a grand or petit jury for several years up to the time of trial and which in any event produced only a token number of prospective Negro jurors. The evidence also disclosed a system whereunder daily wage earners and all outside workers were excluded from the overall jury list from which petit jural panels are drawn. -The latter disclosure, in my judgment, made out a prima facie case, which was not overcome. However, I do not agree that the evidence made out such a case with respect to exclusion or limitation based on race.
The majority places great stock in the fact that no Negro actually served, on a grand or petit jury during the period in question. Such reasoning conflicts with Swain v. State of Alabama, 1965, 380 U.S. 203, 85 S.Ct. 824, 13 L.Ed.2d 759 and our recent en banc decision in Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 571, where we said:
“ * * * nor does the Constitution require that any particular panel of jurors in a criminal trial include members of the race of the accused person. Swain v. State of Alabama, 380 U.S., 202, 85 S.Ct. 824. * * *”
Of course, it may be that the fact of no actual jury service by a Negro is sub*740mitted as a factor in the total proof picture relating to exclusion or limitation based on race and not as a conclusionary fact. Nevertheless, it is a slender reed on which to base a finding of deliberate and intentional limitation and exclusion of Negroes in the selection of petit jury panels in light of the undisputed evidence that each of the 150 person jury panels included at least ten per cent Negro representation. This was a stipulated fact and the testimony of Judge O’Hara indicates an even higher percentage over a sustained period of time. In line with other testimony in the case that a smaller percentage of Negro population was qualified for jury service than the white population, this minimum of ten percent representation as compared to a thirty two per cent Negro population does not make out deliberate and intentional limitation or exclusion of Negroes from jury service.
It does appear that the 150 person panels were usually reduced by the trial judges to a final venire of approximately 75 persons and that the percentage of Negroes on these final venires was only slightly over three per cent. However, the reduction in Negro representation came about through excusing jurors who asked to be excused because of a hardship, or simply by letting those of the 150 serve who volunteered to serve. Apparently only about one half of the 150 jurors on each panel were needed for actual service so many could be excused. This practice is hardly a basis for a finding of deliberate and intentional limitation or exclusion of Negroes from jury service.
On the other hand, I do think the practice of excluding all daily wage earners from jury service violates the requirement that a jury list be comprised of a fair cross-s ’tion of a community. Theil v. Southern Pacific, 1946, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1183, makes such a requirement clear in federal cases. Fay v. People of State of New York, 1946, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, points out that the reversal in Theil rested on the supervisory power of the court of federal trials. Then, the court, in Brown v. Allen, 1952, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, while adhering to its Fay position that rules dealing with the selection of federal juries are not applicable in state court proceedings, nevertheless said:
“Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. *
Implicit in the rationale of Fay v. People of State of New York and Brown v. Allen, is the teaching that the equal protection and the due process clauses of the Fourteenth Amendment are violated by the exclusion of a class where the result is a jury list that does not reflect a fair cross-section of the community.
This fault in the Orleans Parish jury system is not based on race except insofar as there happened to be more Negro daily wage earners than white but it is a fault of such a magnitude as to indicate an improper jury system. This is not to say that there was not a reason for the exclusion. Jurors in Orleans Parish are not paid and the exclusion of this class of jurors was for the practical reason that jury service would amount to a financial hardship and the tendency in the end would be to excuse jurors in this class anyway. Nevertheless, such a blanket exclusion cannot be permitted whatever the reason and the case is due to be reversed because of this fault.
The mandated question was to determine whether there was a deliberate and intentional limitation and exclusion of Negroes contravening the federal Constitution. My own conclusion goes outside that question but I doubt that we are limited to a narrow reading of the question and the scope of the question would include a finding of a defective system based on the exclusion of the wage earner class.
A word of caution is appropriate with respect to some of the other language in the majority opinion. As concerns the waiver question, I would emphasize the *741deliberate by-pass doctrine of Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 387. Defense counsel should not take the court’s derogation of the waiver doctrine where applied to federal constitutional rights in federal habeas courts as a license to forego challenging jury systems and thereby provide a built-in error in the event the first trial results in a conviction. Moreover, trial courts should be alert to avoid just such situations by requiring counsel to make a choice in the first instance as to whether the jury system is to be challenged.
The opinion of the majority tests the disparity between non-white population and the number of Negroes on the jury list without regard to literacy. As my dissent in Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, makes clear, and as I have stated here, I think the disparity should be tested in light of a reasonable literacy standard. The comparison should be made on the basis of the percentage of the Negro population available and qualified for jury service as against the percentage of Negroes on the jury list. In this connection, there is some mention in the majority opinion of a literacy standard based on a fourth grade education. This contemplates jury service by functionally illiterate persons. I do not think this is an adequate educational standard in a country dedicated to education and where all states save one have compulsory education. The harm done to the jury system by the adoption of such a low standard would be incalculable. Assuming that the right to jury trial under the Sixth and Seventh Amendments is a viable right, it could hardly be supposed that the right would not include a jury made up of jurors who could comprehend the issues, and who would have the capacity to resolve the issues. Such issues must often be resolved by sifting complex facts and by following difficult instructions on the appertaining law. How is this right to be vindicated where a jury list includes illiterates ? Voir dire questions might disclose illiteracy but at the risk of offending or destroying the dignity of the jurors. Seemingly no other protection would be available. See United States v. Henderson, 7 Cir., 1962, 298 F.2d 522, for an approved jury system where an eighth grade education standard was one factor considered by jury commissioners in selecting prospective jurors.
The majority relies on state authorities for the proposition that an entire jury system is infected where the list does not represent a fair cross-section of the community and thus finds that appellants have standing. This proposition, if not settled by the broad language of the Supreme Court in Ballard v. United States, 1946, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed.2d 181, a federal jury case resting on the supervisory power, was at least forecast. The court there said that reversible error in such event does not depend on a showing of prejudice in an individual case. The due process clause of the Fourteenth Amendment guarantees a fair trial, Fay v. People of State of New York, supra, and cases there cited, and a fair trial envisions a jury list which reflects a fair cross-section of the community. Brown v. Allen, supra. Having these authorities in mind, I have no difficulty in concluding that the appellants have standing to complain of the wage earner class exclusion.
Having joined in the reversal, it may be well to add that little is apt to come of new indictments. The crime was committed in 1950, appellants were tried in 1953; and it is unlikely that adequate proof would be forthcoming under the facts of this case for conviction at this late date. The Supreme Court was of this view in 1955. See Michel v. State of Louisiana, supra. This is an example of a near breakdown in our system of criminal justice brought about by a defect in the jury process, and long delays in the appellate process through the indulgence of the piecemeal appeal approach.1 Persons *742charged with grave crimes may go free. Society will be the loser. Paraphrasing the famous dictum of Justice Cardozo in People v. DeFore, 1926, 242 N.Y. 13, 150 N.E. 585, the criminals may go free because the courts have blundered.
It may be that administration of criminal justice now exceeds the capacity of our court system. There is no doubt that the administration of the jury system presently exceeds the capacity of the court system. Our en banc decisions in this case and in Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, and Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1, make this clear. I do not think it an excessive statement to say at this sitting that it is unlikely that there is a jury commission or trial court, state or federal, in this circuit which possesses the prescience to compile a jury list immune from successful attack on either racial or fair community cross-section grounds through the use of a mathematical approach. What may appear as a proscribed imbalance can be easily shown by using percentages. And, of course the decisional process is much simpler where we apply only a mathematical test, but a mathematical straight jacket instead of balanced reasoning on all the relevant facts, has not been the way or the strength of the law. Swain v. State of Alabama, supra, is a fair and commomsense approach to the jury problem and I think' it unfortunate that a lower court departs, as the majority does here on the race question, from the sound view there expressed.
Moreover, it is imperative that the court adopt some new approach to make certain that all possible errors are asserted in the first instance to avoid piecemeal appeals and the resultant interminable delays. The courts may have to adopt a parens patriae approach as guardians of the court system to make certain that possible errors are not held out for future use.
. As examples of unusual delay, see the following cases heard en banc along with this case: Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, appellant sentenced to death in 1958 for rape; Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1, 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.