On State’s Motion for Rehearing
MORRISON, Presiding Judge.1,While we remain convinced that the trial court erred in discharging eight members of the jury panel, we were in error in ordering a reversal of the conviction. The record shows that' appellant was not injured by the action of the court in excusing the women jurors. The bill of exception as qualified certifies that appellant made no objection to the members left on the list, did not exhaust his peremptory challenges, and was not forced to accept an objectionable juror; and the jury was obtained from those remaining on the list or venire.
Where neither the Constitution nor the statutes are violated, the removal of one or more jurors from the panel, though without reason or for an insufficient reason, will not call for reversal in the absence of a showing of - injury. Hodge v. State, 112 Tex.Cr.R. 618, 18 S.W.2d 167; Smith v. State, 123 Tex.Cr.R. 47, 57 S.W. 2d 132. See also Ellis v. State, 69 Tex.Cr.R. 468, 154 S.W. 1010, 1011; Duke v. State, 61 Tex.Cr.R. 441, 134 S.W. 705; Mays v. State, 50 Tex.Cr.R. 165, 96 S.W. 329; Matthews v. State, 156 Tex.Cr.R. 275, 239 S.W.2d 817; 26 Tex.Jur. p. 622, sec. 57;
It will be noted that the instant trial was held in April, 1955. The Constitutional Amendment making women eligible for jury service became effective November 19, 1954. Torres v. State, Tex.Cr.App., 278 S.W.2d 853. It was not until June, 1955, that this Court held in- Dukes v. State, Tex.Cr.App., 282 S.W.2d 235, that in the absence of a showing of probable injury a mixed jury might separate for the night so long as the male and female groups were each in the charge of a bailiff.
In Jackson v. State, Tex.Cr.App., 278 S.W.2d 310, we held that in jury wheel counties the Constitutional Amendment could not be complied with until August, 1955.
In the case at bar, we had a trial judge who had no specific legislation authorizing the separation of men and women jurors, H.B. 78,. Chap. 288, Acts 54th Legislature, Regular Session 1955, did not become effective until May 20, 1955, Vernon’s Ann. Civ.St. arts. 2133, 2135; Vernon’s Ann. C.C.P. arts. 623, 670, and who had no notice that this Court would hold that such legislative authority was not necessary.
In Jackson v. State, supra, we pointed out that changes as fundamental as the one making women eligible for jury service could not be made overnight.
We are not here confronted with an arbitrary disregard of the statutory method of selecting and empaneling jurors without discrimination because of sex, race, nationality or religion. Appellant belongs to a different sex from that of the excused jurors, and, as stated, no violation of the Constitution or statutes is shown in this record.
We recognize that the recent amendment of the Constitution of this State imposes upon women as a class the inescapable duty of jury service, and our decision here is not to be construed as condoning any arbitrary disregard of such constitutional mandate in the selection and empaneling of jurors in our courts. See Winfield v. State, Tex.Cr.App., S.W.2d -.
In the absence of a statement of facts, the- remaining bill of exception cannot be appraised.
The State’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.
On State’s Motion for Rehearing