dissenting.
I respectfully dissent to Division 1 of the court’s opinion. Heretofore, this court has found that a defendant waived his right to challenge the composition of the grand jury when the defendant was arrested, and had counsel, prior to indictment. Here the doctrine of waiver is being extended to apply to a defendant who was arrested and had counsel after the indictment. I would hold that the motion to quash the indictment was timely made. See Estes v. State, 232 Ga. 703 (208 SE2d 806) (1974), and cits. I would then consider that motion on its merits.
To make out a prima facie case of jury discrimination the defendant must prove (1) that an opportunity for *599discrimination existed in that the source from which the potential jurors were drawn was racially biased and (2) that the use of such an "infected source” produced a significant disparity between the proportion of blacks on the jury list and those found in the community. Whitus v. Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599) (1967); Pass v. Caldwell, 231 Ga. 192 (200 SE2d 720) (1973). If the defendant succeeds in presenting a prima facie case, then the burden shifts to the state to explain the discriminatory figures. Whitus v. Georgia, supra; Pass v. Caldwell, supra.
Code Ann. § 59-106 (Ga. L. 1968, p. 533; 1973, p. 484) provides that the board of jury commissioners shall compile, maintain and revise a jury list of intelligent and upright citizens of the county and that in composing such list the primary source will be the official registered voters list. In order to reach a fairly representative cross section, the Code section allows the jury commissioners to supplement this list. The registered voters list contains names unidentified as to race.
In this case the "sources” of the 1969 jury list were the 1967 jury list, the voters list, the telephone book and the city directory. The 1967 jury list was drawn from the tax digest. In addition, there was testimony that in Cordele, the race of an individual could be determined accurately from his address. Thus we should conclude from the use of the 1967 jury list, the telephone directory and the city directory, that an opportunity for discrimination existed in the racially biased sources from which potential jurors were selected in 1969.
Next we should turn to the second requirement to see if the use of these sources produced a significant disparity between the proportion of blacks on the jury list and those in the community. The 1970 census shows that 33% of the people in the community over 21 were black whereas the grand jury list was 91.5% white. The disparity between the percentage of blacks on the grand jury list and the percentage of potentially eligible black jurors is sufficient to make a prima facie case.
At this point the burden shifts to the state to explain the disparity. The jury commissioners testified that they did not exclude an individual because he was black nor *600did they select another because he was white. Affirmations of good faith in making individual selections are insufficient to overcome a prima facie case. See Alexander v. Louisiana, 405 U. S. 625 (92 SC 1221, 31 LE2d 536) (1972).
In Mitchell v. State, 226 Ga. 450 (1) (175 SE2d 545) (1970), this court found that the state rebutted a prima facie case. The evidence offered by the state in the case before us does not rebut the prima facie case made by appellant and the motion to quash the indictment should have been granted.