concurring specially.
I concur in the reversal by the majority opinion, but dissent from certain parts thereof.
1. I dissent from Division 1 of the majority opinion which sustains defendant’s challenge to the array of jurors and cites imposing authority for such position. I do not agree with those authorities that would impose an almost impossible task upon the jury commissioners as to "selection of a representative cross-section of the citizenry of the county” before a legal trial of one charged with crime may take place. I therefore do not feel compelled to follow any such impossible theory.
The present trend is that all too often those charged with crime are able to upset the jury list because of the allocation of percentages of whites, blacks, males, females, etc. To reduce this position to an absurdity (reductio ad absurdum) which is a well recognized and logical process of reasoning, we may soon reach the point where a defendant can be legally tried only by a jury of his own color, sex, height, weight, religious leaning, political philosophy, and state of health. And let us not forget to match the color of his eyes, and hair, and skin. This is indeed "reductio ad absurdum,” but it is illustrative of the direction in which our courts are heading. I would call a halt to this practice.
An important part of the controlling Georgia statute on this subject is being overlooked, disregarded, and contravened. Our statute provides in pertinent part: Code Ann. § 59-106: "If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly representative thereon.”
This statute is quite plain. The jury commissioners have no duty whatever to supplement the jury list so long as it appears to them that it "is a fairly representative cross-section of the intelligent and upright citizens of the county.” But, if the jury commissioners decide that the *601jury list does not have thereon a fairly representative cross section of the intelligent and upright citizens of the county, then, and only then, they are directed to seek out intelligent and upright citizens from identifiable groups in the county. We repeat, the identifiable groups do not come into the picture —have no standing and no right to be projected therein — so long as the jury list is composed of a cross-section of the fairly representative intelligent and upright citizens of the county.
The Constitution of the United States, the Constitution of Georgia, and the statutes of Georgia make no such requirement as some courts are now imposing. See Code §§ 1-304, 1-806; Code Ann. §§ 2-105, 2-5101, 2-5102, 59-106. The requirements are that the jurors must be upright, intelligent, impartial, and residents of the county. By what right have the courts superimposed additional requirements onto our Constitution and statutes?
Is a bachelor entitled to have a proportionate number of bachelors in the jury box before he can be legally tried? Is a divorcee entitled to a similar requirement? If an emigrant from another country is naturalized here, and is about to be placed on trial in a criminal case, must the jury list be revised so it can have added thereto a proportionate number of naturalized emigrants from foreign countries. Quo Vadis?
2. The majority opinion suggests in Division 3 that Georgia does not have discovery in criminal cases, although that point is not essential to the decision therein made. I agree with the results, but I am firmly of the opinion that Georgia statutes do provide for discovery in criminal cases. Code Ann. § 38-801 sets forth provisions for discovery in all cases, and is followed by Code Ann. § 38-802 as follows: "Section 38-801 shall apply to all civil cases, and, insofar as consistent with the Constitution, to all criminal cases.” (Emphasis supplied.) I find nothing in the Constitution inconsistent with discovery in criminal cases.