(dissenting) :
I am unable to agree that Witcher’s allegations in support of his habeas corpus writ have been proved.
Two claims are made by petitioner.
First, that prima, facie evidence of discrimination was to be found in the percentile disparity in the ratio of Negro jurors to White jurors when measured against the total White to Negro population in Pittsylvania County, Virginia, in 1963.
Second, that a prima facie case of discrimination was made manifest by the indication “COL” opposite the names of Negroes chosen for jury service. These claims are asserted against both the State grand jury and petit jury, which functioned in the indictment and conviction of Petitioner Witcher for attempted rape and for which he was sentenced to thirty-five years.
The very sketchy evidence would indicate that 25% of the total population of Pittsylvania County, Virginia, was Negro in 1963, but the Negro membership on the grand jury that indicted Witcher was only 15% (one on a jury of seven). On the petit jury venire of 33 at Witcher’s criminal trial for attempted rape, 8(4% were Negroes (three). It is argued that the disparity between the number of Negroes serving on the suspect juries when reflected against the total Negro population of the County makes out a prima facie case of discrimination in the selection of these juries. I do not agree that this is true.
In Virginia, by statutes not here attacked as invalid, qualifications and exemptions for service on grand and petit juries have been established. (Code of Virginia of 1950, Section 8-174 et seq.; 19.1-148; 19.1-150). Percentages, by race, of those serving, therefore, to be valid as even prima facie evidence, must be measured against and relate to the number qualifying for jury service under the valid statutes and not against the total population. The evidence as to the number of qualified jurors, White or Negro in Pittsylvania County, has not been presented to this Court.
What is the number of the White or Negro population in the County who were over 21 and under 70 years of age? What is the White and Negro female population who can only serve as jurors if they agree? How many have been residents of the State of Virginia for one year and of Pittsylvania County for six months ? How many, White or Negro, meet the minimum standard of competence (which certainly relates, at *731least, to literacy), as required by Statute ? How many were exempt under the 30 or more exemptions set forth in the Statute ?
For example, counsel for petitioner, in oral argument, asserts that the average Negro adult in Pittsylvania County in 1963 had only a fourth grade education. Assuming this alarming and disagreeable average to be true, it follows that a considerable portion of the Negro population had less than a fourth grade education and perforce, no education at all. Education, as such, is not a requisite for jury service but the Virginia Statutes on juror qualifications (8-174, 175) must, in the very minimum, be construed to require literacy. This statistic, which may indict the school system, but not the jury system, serves here to further limit the group from which a qualified jury may be chosen.
The proper inquiry to raise a prima facie case, in my judgment, is to reflect the number of Negroes chosen for jury service against the number of Negroes qualified and eligible for jury service and not the total number of Negro inhabitants of the County. This question is not answered by the evidence on hand and the percentile on a pure population approach fails, even as a prima facie matter, because the statutory qualifications — not attacked — rule out total population as a responsive arithmetical item.
And I find no credible authority anywhere, statutory or otherwise, to support the petitioner’s contention that the grand jury should be so composed as to make necessary the affirmative vote of at least one Negro to return an indictment. The Virginia Statute (19.1-157) requires four members of a grand jury to agree. To meet the petitioner’s requisite of at least one affirmative Negro vote on the grand jury to indict Witcher, four members of the seven man grand jury which indicted him would have had to be of the Negro race. Such a jury would be 55% Negro.
Likewise, the argument that the petit jury panel did not have such a proportion of Negroes that they could not all be eliminated by peremptory challenges finds no constitutional support. In 1963 the normal criminal venire in a Virginia County was twenty and the number of peremptory challenges was eight. Nowhere do I find authority that the panel should have included nine Negroes.
In 1963 in Pittsylvania County, as in many other Virginia communities, the practice persisted in designating Negroes on the jury rolls as “COL”.
In the instant case the grand jury was chosen by Judge Langhorne Jones, as the Statute (Code of Virginia of 1950, 19.1-148) required, in his judgment, “suitable in all respects”. Since the judge himself assembled the list of names from which the grand jury was chosen and since he chose the final composition thereof, the fact that the designation “COL” appeared by the name of David Logan, fails to raise any prima facie presumption of discrimination that I can perceive. It could hardly be argued that Judge Jones was trying to influence himself. Judge Jones testified that no discrimination was intended and that, to the contrary, the designation was employed to indicate that discrimination was not practiced in his circuit and that persons of both races were on the grand jury list and were selected for service.
So, too, the names of Negroes on the master jury roll were designated “COL” and on the venire list prepared after the drawing were designated “COL”. But the use of “COL” in the peculiar facts of this case do not raise any presumption of discrimination. Unlike Bostick v. South Carolina, 386 U.S. 479, 87 S.Ct. 1088, 18 L.Ed.2d 223 (1967); 247 S.C. 22, 145 S.E.2d 439, and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), the names placed on the jury roll by the Commissioners in Pittsylvania County, Virginia, were not taken from constitutionally condemned segregated list—(in Bostick they were taken from “registered male elector lists”, which severely limited Negro listings thereon and from racially seg*732regated registration lists; in Whitus, the jury list, by statute, was taken from a racially segregated “tax digest list”). In the instant case, however, the selection was not from an illegal or tainted list, and the designation “COL” was added by the Commissioners, from their own knowledge of the persons involved, in an abundance of caution to affirmatively show that they had followed Judge Jones’ admonition that discrimination was not to be practiced. They added the designation to indicate that Negro names were indeed on the roll. The evidence further is that every name taken from the locked jury box was immediately listed on the intended venire list unless to the knowledge of the Clerk, the selectee had died. Even if the designation “COL” might raise a presumption under some circumstances, such presumption is overcome in this case under the explanations made. Indeed, Public Law 90-274, known as “Jury Selection and Service Act of 1968”, § 1869(h) suggests that the jury qualification form, to be used in conjunction with this federally promulgated legislation, should request, but not require, the race * * * of a potential juror. This information is sought for the particular reason of showing the “at random” jury is, in fact, non-discriminatory and to provide the statistics to prove that point. Thus where race information or “COL” is not considered discriminatory under the jury procedures in force in courts of the United States, it should not be condemned in a state court jury procedure where, as here, the same reasonable explanation of its value is at hand.
This case is not like the first case of Whitus v. Balkcom, 370 U.S. 728, 82 S.Ct. 1575, 8 L.Ed.2d 803, which, on remand, found 45% of the population of Mitchell County was Negro, 42% of the males over 21 were Negro, and no Negroes had ever served on the grand or petit juries. This case is not the second Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), in which the attack is against the Georgia statute requiring selection of the grand and petit jury from a tax digest list of 1964, which the federal courts had already condemned for such purpose as being a racially segregated list.
This case is not like Bostick v. South Carolina, 386 U.S. 479, 87 S.Ct. 1088, 18 L.Ed.2d 223 (1967), 247 S.C. 22, 145 S.E.2d 439, where the jury lists were drawn from racially segregated registration lists.
Nor is it Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), where for at least sixteen years before the defendant was indicted no Negro had ever been called to serve on a Dallas County, Texas grand jury.
In short, the percentage figures presented to show the ratio of Negroes listed for jury service have been worked against the total population of Pittsylvania County, without taking into account the many qualifications for jury service demanded by a valid State Statute not here attacked, and which statute materially limits the citizenry, White or Negro, eligible to serve as jurors. Such percentages, therefore, are of no prima facie value. Moreover, the State has met its burden of proof in the uncontradicted testimony of Judge Jones and the Commissioners that the lists were prepared according to law, from proper sources, Negroes were listed thereon, no discrimination was intended or practiced and the designation “COL” was made in an effort to objectively show no discrimination. Negroes were included on the panel of the grand jury and petit jury involved with Witcher. He was convicted of a heinous crime, and that conviction has been subjected to appellate procedure. It should not be upset and Witcher released upon an offering of improper arithmetic as expressed in percentages calculated upon inappropriate inputs.