(concurring in part).
Along with the questions certified to the Supreme Court was an appended opinion by Cates, J., in which neither of the other judges of the Court of Appeals concurred.
The following is an abridgement of that earlier opinion. The separate opinion of partial concurrence filed by Cates, J., refers thereto.
*333In State v. Madison, 240 Md. 265, 213 A.2d 880, Madison, unlike Schowgurow, belonged to a faith believing in a Supreme Being.
The State argued therefore that he had no •standing to complain of being indicted and tried by juries of believers.
After reviewing Walter [Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607], supra, Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, and Allen v. State, 110 Ga.App. 56, 137 S.E.2d 711, the Maryland 'Court of Appeals concluded:
“Equal protection of the laws, as well as due process, is involved. Under the .state’s contention, while Schowgurow, a Buddhist, was held entitled to a new trial because he was indicted and tried by juries unconstitutionally selected, Madi•son, a member of the Apostolic faith, •could not object to his indictment by a grand jury selected in the same unconstitutional manner. The only difference between the two men, in this respect, is the nature of their religious beliefs. Discrimination because of opinions about religion is one of the classic examples of •denial of the equal protection of the laws. Niemotko v. State of Maryland, 340 U.S. 268, 272-273, 71 S.Ct. 325, 95 L.Ed. 267 (1951) ; Juarez v. State, 102 Tex.Cr.R. 297, 303-304, 277 S.W. 1091 (1925). If we were to uphold the State’s contention in this case, the effect would be that pending indictments against persons who believed in a Supreme Being could not be successfully challenged, while indictments .against others who do not have that belief would be dismissed. There would, in •effect, be an unconstitutional discrimina•tion in favor of nonbelievers as against believers.
“The State points to the fact that a •decision in its favor in this case would materially reduce the number of indictments which must be rebrought. We made it clear in Schowgurow that the decision in that case, for the reasons of public policy in the administration of justice therein stated, with the exception noted, is to apply only prospectively. Nevertheless, we recognize that there will be some interference, for the time being, with the expeditious disposition of pending criminal cases. This additional, if temporary, burden upon our courts and the State results because, under the decision of the Supreme Court in Torcaso, the fundamental principles of due process and the equal protection of the laws require that all accused persons in pending criminal cases shall have the right to ask that they be indicted and tried by juries selected in the manner which the Supreme Court’s decision has made necessary. We pay a price for the federal nature of our government, but, without it, we would not be a nation. Under our governmental system, the decisions of the Supreme Court must be controlling even when, as here, the decision makes invalid a long-established provision of the Maryland Constitution, previously held valid by this Court.”
I consider Philpot, though a male, had standing ■ to complain of the absence of women on the array brought to him and to the jury rolls of Lee County.
I am not in accord with the rationale of headnote 11, page 409, in White v. Crook, supra, that Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, and Tehan v. United States, ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L. Ed.2d 453, are apt as dictating “prospective overruling.”
First, I fail to see that there is any overruling of any prior court decision expressly or in fair terms approving confining jury selection by the statute or its predecessors to “male persons.” All that can be shown either in Alabama or United States Supreme Court decisions is dicta such as that used illustratively in Strauder v. West Virginia, infra.
*334Second, prospective overruling when employed in criminal law is seldom found where a self-executing constitutional right is breached. E. g., Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799.
See State v. Johnson, 43 N.J. 572, 206 A.2d 737, In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380, wherein it is pointed out the Mapp [Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081] and Escobedo cases are both evidentiary rulings using the rule of exclusion to restrain the prosecution.
Certainly, Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118, in 1961 was the revelation of what White v. Crook, supra, now expressly declares in 1966.
Nor do I find any difficulty in considering White v. Crook as binding authority. The Federal statute, 28 U.S.C. § 1253, shows that review by the United States Supreme Court is available to the unsuccessful party.
Here, the Attorney General, the State’s constitutional law officer, saw fit to let White v. Crook become final. See State, ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280. It is a class action, res adjudicata, as to Lowndes County’s officers.
What Exemption can Constitutionally be Conferred on Women Jurors and not on Men?
At the outset, I think it is crystal clear that broad exemptions for women, whether administrative or legislative, are extremely dubious as to equal protection and of complying with the Alabama Constitution, § 6, which, in trials of indictments, calls for an impartial jury of the county or district in which the offense was committed.
Of the system', allowed to continue in Hoyt v. State of Florida, supra, the following comment is incisive and portentous of possibly another constitutional assault:
"However sound the foregoing conclusions may be theoretically, as a practical matter, automatic exemption equals automatic exclusion. If a state has a statute which requires that a woman volunteer if she wishes to serve on a jury, even if that statute does not purport to> exclude women and even if it is fairly administered, the result will probably be that few, if any, women will serve on a jury in that state. Only a small fraction of those eligible ever volunteer.”— Notes, Courts — Women Jurors — Automatic Exemption, 36 Tulane L.Rev. 858, 861 (1962).
The plumbline for the permissible latitude in exemption was set up by Mr. Justice Holmes. In Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899, we find:
“ * * * The exclusion was not the result of race or class prejudice. * * ”
The court saw a bona fide ground for the good of the community that their regular work should not be interrupted.
Under this test, an exemption for women who have school age children or invalid members of their household would seem reasonable. Beyond that, reasons give rise to exceptions and the possibility for discriminations.
Often we are posed with the eligibility of the mother who has a full retinue (if today there be such) of household servants. Her taking umbrage in a statutory exclusion might deprive the court of a trained intelligent mind.
Conversely, to draft her and other women so situated might load trials with silk stocking venires.
Accordingly, I think the circuit judges should be given the power to excuse women jurors in their sound judicial discretion. *335This may not be feasible in all capital cases.
This arrangement could not cause the entire jury system of the State to be stricken down at one fell blow.
Conclusion
Hence, as to the exclusion of women jurors, I consider
1) Code 1940, T. 30, § 20, and allied sections restricting juries to men only violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States;
2) The appellant’s motion to continue was proper procedure by a proper person within the protection of the Equal Protection Clause;
3) The appellant’s retrial should be postponed until either:
(a) the jury rolls have been refilled with an appropriate number of qualified persons without regard to sex and a venire drawn therefrom is summoned to try Philpot’s indictment; or
(b) he knowingly and intelligently withdraws his motion for continuance.
As a precedent, I would consider this to be retroactive only as to those who have objected before selection of a trial jury. Since no question of quashal of the indictment arose, I would forego any discussion thereof.
I rather suspect that today its only props are ancestor worship, male pride and female indifference.
After the Fourteenth Amendment came into being, a further defect showed up in the one-sidedness of the structure.
Because I think the motion to continue for want of venire-women was well taken, I vote to reverse the judgment below.
After our Supreme Court passed the women jurors question behind a veil of the rule of “standing” evolved in race exclusion cases, I thought for a time of withdrawing my original opinion. To find oneself in solitary disagreement, particularly in a relatively unblazed forest, is an experience which requires reappraisal.
Moreover, were sheer numbers decisive, the views of my two colleagues, the seven justices of the Supreme Court, also of Judges Rives, Johnson and Allgood, would require me to fold my tent and steal away.
Thomas Jefferson thought that each and every appellate judge should have to give a separate opinion. Warren, The Supreme Court in United States History, Vol. II, 113. This he conceived would be useful for the legislature to review the reasoning of the judges as well as the state of the law.
An intermediate appellate court whether ostensibly final or not can drift into becoming a mere' ticket agent’s validating stamp for a convict’s journey from the county jail to the state prison. Much of our work sometimes seems to be given only cursory consideration by either superior or inferior courts. We seldom settle law except for the parties of instant concern. Waterman S. S. Corp. v. Brill, 243 Ala. 25, 9 So.2d 23. Indeed, one Attorney General of lamented memory is reputed to have ordered, de rigueur, the State’s applying for certiorari on every reversal of a criminal conviction.
Yet we take the same oath as upper and nether judges. The temptation to tolerate a one-man opinion jurisprudence is an open invitation for corrupting thieves to enter the treasure house of the law.
I disclaim being afflicted by cacoethes dissentiendi. Rather, I believe I am required by my oath to express my views candidly. Conformity repressed contributes to intellectual sterility. Reasonable men and women should differ: from a rational dialogue others may reach better conclusions.
*336Here we have no settled rule of law. We have a statute enacted in an environment of an era in which women were consigned to the care of “Kinder, Kueche und Kirche.”
With our Legislature currently seeking to find the application of White v. Crook, D. C., 251 F.Supp. 401, divergent views and not formal uniformity should be a desideratum in the public forum.
I cannot sit on my hands and let the quotation, infra, in the Supreme Court’s response stand alone. In Blauvelt v. Holman, D.C., 237 F.Supp. 385, Johnson, J., reviewed by habeas corpus the detention of a State prisoner. Blauvelt v. State, 276 Ala. 671, 166 So.2d 399 (on coram nobis).
Hollis v. Ellis, D.C., 201 F.Supp. 616, there cited was a case where no state court appeal was taken. Bailey v. Henslee, 8 Cir., 264 F.2d 744, involved a Negro defendant who later had his conviction set aside. See 361 U.S. 945, 40 S.Ct. 408, 4 L. Ed.2d 364 and 287 F.2d 936.
Apter authority to deny the male defendant the right to demand female jurors might be gleaned from McKinney v. State, 3 Wyo. 719, 30 P. 293, 16 L.R.A. 710; State v. James, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141; State v. Mittle, 120 S.C. 526, 113 S.E. 335; Commonwealth v. Duca, 312 Pa. 101, 165 A. 825; Griffin v. State, 183 Ga. 775, 190 S.E. 2; State v. Sims, 213 N.C. 590, 197 S.E. 176; and State v. Jones, 5 Terry 372, 44 Del. 372, 57 A.2d 109.
These cases are but a barren echolaic adjuration to invoke the dictum in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, above mentioned. They fail to come to grips with the central paradox of conceding that women are human beings who may owe taxes but are to be denied a right to participate in government.
To confuse the exclusion of members of a race with the exclusion of one half the population (because female) verges on sophistry. The right to have women on juries is not based on any right of men to have men and women to have women to sit in judgment. The jury is not an elite corps, nor a corps of humanity’s lowest common denominator.
Returning to Blauvelt v. Plolman, supra,. I think a reading of the entire opinion shows that the reason for rejection of Blauvelt’s claim quoted in the Supreme Court’s response was actually intended as. but an illustration of the frivolity of Blauvelt’s petition.
Thus, in addition to the extract used by our Supreme Court, the Blauvelt opinion contains the following:
“As to the contention that Blauvelt now presents which relates to the systematic exclusion of members of the Negro race from juries of Sumter County prior to- and at the time of the proceedings which resulted in his present incarceration, the record, as now presented in this case,, reflects that Blauvelt has not fairly and' squarely presented this issue to the courts-of the State of Alabama as he is required to do under § 2254, Title 28, United States Code. Furthermore, as to this, issue, it affirmatively appears in this, case that Blauvelt, a member of the-Caucasian race, was fairly and adequately represented by counsel during the entire proceeding that resulted in his present incarceration. His counsel were competent and adequately and fairly represented him. The proceeding that resulted in his present incarceration included a plea of guilty to murder in the second degree, with the plea being entered by Blauvelt intelligently and with agreement by his counsel and his mother. This-agreement further involved the additional' provision that he would upon said plea, of guilty receive a sentence of forty years. The jury followed to the letter the agreement as made by Blauvelt, his-counsel, his mother and the prosecuting attorney. It follows, therefore, that this. *337petitioner was not deprived of any of his constitutional rights by reason of the proceeding which resulted in his present incarceration. In addition to the foregoing reasons, the record in this case reflects that Blauvelt, through his counsel, intelligently waived any objections that he may have had to the jury that was used in the proceeding resulting in his present incarceration. Floyd v. United States, 5 Cir., 260 F.2d 910; Mitchell v. United States, 104 U.S.App. D.C. 57, 259 F.2d 787. As a matter of fact, the record in this case affirmatively shows that the particular jury which heard his case was desired by the defendant and the defendant’s counsel. In this connection, see Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, * * *”
As to White v. Crook, supra, I submit that Judges Rives, et al., seem in search for a modicum of palatable popularity of the Federal Judiciary, to have produced, with the postponed prospectivity, a conceptual monstrosity which tries to go simultaneously both North and South. Johnson v. New Jersey, supra, to me clearly indicates that White v. Crook was not an appropriate case for application of the doctrine of prospective adjudication. Either women should be on our juries now or the State Legislature uncoerced should lay down the timetable.
Though I believe women should now be on our juries, I do not think this should come from a Federal ukase hanging like the Sword of Damocles over our Legislature.
The mode of proceeding in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed. 2d 506, has no logic in the realm of jury selection. There are other judicial procedures of firm tradition to allay any supposed mischief.
As to the finality of the .Alabama Supreme Court’s view of the Federal constitutional problem here presented, I have heretofore taken a different view from my colleagues of Code 1940, T. 13, § 98, as applied to Federal questions. If I am wrong, I prefer to be consistent in my error. See Knox v. State, 42 Ala.App. 578, at 586, 172 So.2d 787, at 794.
Pragmatically, I realize this court is but a way station in the line of adjudication. My concern is that it should not narcotize itself so as to become a stagnant siding. See Ethridge, C. J., dissenting in State v. Hall, Miss., 187 So.2d 861, at 870.
Mr. Justice Foster, dissenting in Waterman S. S. Corp. v. Brill, 243 Ala. 25, at 29, 9 So.2d 23, at 28, said of Federal questions :
“This is a question of legislative interpretation by a court whose opinion is not conclusive and is only effective until the Supreme Court of the United States shall speak. It is our province to make the interpretation which we think will accord with that of the court which has final authority. As we undertake that task, there are only two considerations to guide us. One is the trend of judicial opinion manifested in that court of final jurisdiction, or two, in the absence of any clear direction from that source, to make the interpretation as we think is consistent with the rules and principles which are usually applied to legislative construction. * * * ” (Italics added.)
This is the classic diagnostic dichotomy: shall the puisne judge prophesy or should he seek the revealed writing on tablets of stone ?