WOODMAN J. COLLINS, APPELLANT,

v.

VICTOR G. WALKER, WARDEN, LOUISIANA STATE PENITENTIARY, ANGOLA, LOUISIANA, APPELLEE

RIVES, Circuit Judge.

Additional briefs have been submitted on this second petition for rehearing, and the Court has heard further oral argument. At the outset, appellee objects that our opinion, reported at 329 F. 2d 100, contains substantial errors of fact. In particular, appellee urges the following:

(1) “There is nothing in the record to support the Court’s finding that ‘ * * * no other ease was scheduled to be - considered by that Grand Jury.’ ” The burden of appellee’s criticism is contained in the following sentence of his brief: “Indeed, when the Court considers the fact that a grand jury serves for six months, it would be literally impossible for the jury commission to know that no other cases would be scheduled for consideration by that grand jury.” That is quite true. Our statement was in the past tense, “was scheduled” not “would be scheduled,” and was plainly limited to the crucial time when the jury commission chose the list of names of twenty citizens from which the foreman was selected and the other eleven grand jurors wer.e drawn. That statement was accurate and we adhere to it.

(2) Appellee urges that: “Mr. Arcen-eaux did not testify that the 20 names selected for the Grand Jury Venire were in addition to the General Venire of 300.” In the opinion we quoted at length from the testimony of Mr. Arceneaux, including the following:

“A. That grand jury was not picked out of that original group of three hundred.
“Q. It was not?
“A. No. “Q. How was that— “A. The grand jury is picked by names in the additions to the three hundred.
“Q. In additions to the three hundred ?
“A. Correct.”
“Q. Now, as I understand it, when you prepare the grand jury you don’t look in the box of three hundred and select out twenty names? You simply get together and you all select twenty names, period, and put them on there. Is that right?
“A. That’s correct.” 329 F. 2d at 102, 103.
Appellee insists that “instead the grand jury venire was taken from those names added to the 1958 list, which 1958 list had been depleted because of the removal of those names drawn or selected for the various juries drawn since 1958.” While we think that our statement was accurate, we will accept the appellee’s version. The difference is immaterial for the reasons stated in our opinion, as follows:

“ * * * even if the list of twenty had been selected from the general venire list, it would nonetheless remain true that six Negroes were purposely included in that list of twenty because of the fact that they were Negroes; that the identities of the six Negroes so included were known to the jury commissioners; that they knew also that the grand jury to be chosen from that list of twenty was to consider whether to return an indictment against Collins, and that no other case was scheduled to be considered by that grand jury.” 329 F. 2d at 104.
(3) Appellee urges: “At page 10 of the March 11th opinion, it is stated that Collins was indicted for aggravated kidnapping. The only suggested source of this finding is in appellant’s brief, for Collins was not indicted for aggravated kidnapping.” The order of the State Court appointing counsel to represent Collins stated that he was “* * * charged with the crimes of aggravated rape, aggravated kidnapping, and attempted murder by warrants signed by this Court * * * ” (E. p. 29.) He was not, however, indicted for aggravated kidnapping, but was indicted for aggravated rape and attempted murder (R. p. 5).

This correction, though immaterial, is made for the sake of accuracy.

In the list of twenty from which the foreman was selected and the other eleven grand jurors drawn, six Negroes were purposefully included because they were Negroes. The other fourteen on the list of twenty were white persons. In such an organization of the grand jury, there was discrimination against Collins because of his race or color and he was deprived of the equal protection guaranteed by the Fourteenth Amendment. Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Akins v. Texas, 1945, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Hill v. Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. That was the extent of our holding. Collins v. Walker, 5 Cir. 1964, 329 F. 2d 100, 105.

Except for numbers, the grand jury was organized according to a system remarkably like that considered in Hill, Akins and Cassell, supra. As said in Cassell, “Acting under the Texas statutes, the Dallas County grand-jury commissioners chose a list of sixteen males for this September 1947 grand jury from citizens eligible under the statute. The judge chose twelve of these for the panel. No challenge is now made to the fairness of this statutory system. We have approved it.” 339 U.S. at 283, 284, 70 S.Ct. at 630. As further observed in Cassell, the grand-jury commissioners for 21 consecutive lists subsequent to the Hill case had limited Negroes in the list of 16 selected for grand jury service to not more than 1 on each grand jury. 339 U.S. at 285, 286, 70 S.Ct.

629. Mr. Justice Reed said that, “If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.” 339 U.S. 286, 70 S.Ct. 631. “ * * * the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.” 339 U.S. 286, 287, 70 S.Ct. 631-632. “Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.” 339 U.S. 287, 70 S.Ct. at 632. Chief Justice Vin son and Justices Black and Clark concurred in the opinion of Mr. Justice Reed. Justices Burton and Minton concurred in the opinion of Mr. Justice Frankfurter, who said: “It (the Constitution) does command that no State purposefully make jury service turn on col-or.” 339 U.S. 291, 70 S.Ct. 634. “The basis of selection cannot consciously take color into account.” 339 U.S. 295, 70 S.Ct.

636. Mr. Justice Clark, also concurring, recognized the holding that there must be no “purposeful systematic limitation of the number of Negroes on grand juries,” 339 U.S. 296, 70 S.Ct. 636; and “that representation on the grand jury by race in proportion to population is not permissible for there must be ‘neither inclusion nor exclusion because of race.’ ” 339 U.S. 298, 70 S.Ct.

637. Mr. Justice Jackson dissented on the ground that the defendant had not been harmed by the method of selection of the grand jury. 339 U.S. 305, 70 S.Ct. 629.

The main difference between this Collins case and the Cassell ease is that in Cassell one Negro was purposefully placed on the list of sixteen from which the grand jury was selected, while in Collins six Negroes were purposefully placed on the list of twenty from which the grand jury was selected. In both instances, the basis of selection was race. That is the fatal defect.

The appellee’s most serious apprehensions relate to the effect of our holding on the “general venire list” of three hundred persons. LSA-R.S. 15:-179. We recognized (see 329 F. 2d 105) the affirmative constitutional duty resting upon the jury commissioners “ * * not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds. Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service.” Hill v. Texas, supra, 316 U.S. at 404, 62 S.Ct. at 1161, followed in Avery v. Georgia, 1953, 345 U.S. 559, 561, 73 S.Ct. 891, 97 L.Ed.

1244. We further recognize that “[o]ur duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.” Brown v. Allen, 1953, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed.

469. Further, in United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F. 2d 53, 67, we stated that “very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion of Negroes from jury service. Brown v. Allen, 1953, 344 U.S. 443, 471, 73 S.Ct. 397, 97 L.Ed. 469.” Thus it may be that the “general venire list” of three hundred persons is required to reflect a suitable cross-section of the population, and that the jury commissioners have an affirmative duty to include qualified Negroes in that list. If such a requirement and duty have once been met in compiling the “general ve-nire list” no repetition is necessary or even allowed in the selection of the list of twenty “therefrom.” Certainly, as to the list of twenty, the basis of selection cannot consciously take race or color into account. There may be a very real distinction in this respect between the “general venire list” of three hundred and the “list of grand jurors” consisting of the names of twenty citizens selected “therefrom.”

We limited our holding in the present case as follows: “The only list of importance to the decision of this ease is the list of twenty from which the foreman was selected and the other eleven grand jurors drawn.” 329 F. 2d 105. The question of whether it would be a denial of equal protection of the laws to intentionally include names of persons selected on the basis of individual qualifications and also on the basis of race in the “general venire list” of three hundred is not here before us and is not decided.

The appellee’s second petition for rehearing is

Denied.

JONES, Circuit Judge

(concurring specially).

Systematic inclusion of Negroes on a jury, as well as systematic exclusion, is in violation of the due process clause or the equal protection clause, or both. The representation of the respective races on juries must not be proportional, but too few of one race or too many of the other may be evidence of discrimination. The basis of selection cannot consciously take color into account yet, as Judge Rives so aptly says, that in the general venire list, it may be that “the jury commissioners have an affirmative duty to include qualified Negroes in that list.” Thus it seems that perhaps Negroes must be included in the general venire list, although it will be assumed that this is not to be done purposefully lest the Constitution be infringed.

The systematic inclusion of Negroes on the grand jury which indicted Collins rendered the indictment and all subsequent proceedings invalid. No difficulty is anticipated in the selection of a grand jury to indict and a petit jury to try the appellant in compliance with the principles which the courts have announced.

BENJAMIN C. DAWKINS, Jr.,

District Judge (dissenting).

Originally I concurred in the majority opinion on grounds different from those therein expressed, with a footnote reserving grave doubts as to the soundness of the majority’s views. To further clarify my position now, I attach a copy of the original opinion (Appendix A). As I noted therein, the majority decision now rendered indeed places jury commissioners, in both state and federal courts, in a virtually insoluble dilemma, where compilation of a constitutional jury list may be an impossibility. Furthermore, it is directly contrary to the ruling of the United States Supreme Court in Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945).

In Akins the jury commissioners selected sixteen names and placed them on a list from which twelve grand jurors were chosen. The commissioners were instructed not to discriminate against Negroes, and in carrying out this instruction they intentionally selected one Negro and placed his name on the list of sixteen. Of course, in that case the contention was that there was discrimination because of the limitation of Negroes on the list to only one. The Court held that discrimination had not been proved.

The dissenting justices in Akins expressed their views in a manner almost exactly like that now adopted by the majority here. At page 410, 65 S.Ct. at page 1282 in his dissenting opinion Justice Murphy stated:

“ * * * By limiting the number to one they thereby excluded the possibility that two or more Negroes might be among the persons qualified to serve. All those except the one Negro were required to be of white color. At the same time, by insisting upon one Negro, they foreclosed the possibility of choosing sixteen white men on the panel. They refused, in brief, to disregard the factor of color in selecting the jury personnel.”

It is as apparent as apparency can be that the majority in the present case is reasoning as the minority did in the Akins case. For example, in the original opinion here, that has since been withdrawn, but now is disclosed by this dissent, the majority stated:

“The prohibition is often referred to as being against the systematic exclusion of Negroes from jury service because of their race or color. Systematic ¿reclusion of any limited number of Negroes because of race means, however, a corresponding systematic exclusion of Negroes from the remaining number on the venire. For example, while improbable, it is by no means impossible that a grand jury drawn from the general venire list of 300, assuming that list to be prepared without racial discrimination, might have contained more Negroes than the five who sat on the grand jury which indicted Collins.”

And in the substituted opinion the majority states:

“ * * * six Negroes were deliberately included in this list of twenty because of their race. When to this circumstance is added the additional facts then known to the jury commissioners that the grand jury to be chosen from that list of twenty was to consider whether to return an indictment against Collins, and that no other case was scheduled to be considered by that grand jury, the conclusion becomes inescapable that in the organization of the grand jury which indicted Collins there was discrimination against him because of his race or color.”

It is not mentioned at all that we were Informed in oral argument, undisputed by appellant’s counsel, that one of the six held a Ph. D. degree, and that the other five were successful businessmen or farmers — independent, reasonably educated men. They were not mere “Uncle Toms,” who had any economic or physical compulsion against them, regardless of their actions as grand jurors.

In denying the second petition for rehearing, the majority has stated that the jury commission did not know that no other case would be referred to the grand jury, although it knew at the time of selection that only Collins’s case then was pending. Thus the decision rests solely on the intentional ¿«elusion of Negroes on the jury venire. Consequently, the opinion in effect holds that the intentional placing of the names of six Negroes on the list of twenty from which the grand jury was chosen discriminated against Collins, a Negro. What greater non sequitur can there be ? Such a holding is precisely contrary to the' ruling by the Supreme Court in Akins v. Texas, supra. It cannot rationally be argued that the Court there did not consider the position now asserted by the majority, for the simple reason that the same contentions were advanced by the dissenting opinion in Akins and rejected.

The opinion by the majority (in which Judge Jones evinces a somewhat reluctant special concurrence) relies almost entirely — if not entirely — upon Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), where, in my opinion, loose language was used to the effect that: “An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither ¿«elusion nor exclusion because of race.” (Emphasis added.) In support of this conclusion, the following remark from Justice Frankfurter’s concurring opinion is quoted: “The basis of selection cannot consciously take color into account.” d

A fair and profound analysis of Cassell will clearly show that the above quotations as to ¿«elusion are purely dicta, nothing more or less. The Court stated that the reason for granting certiorari was “ * * * to consider petitioner’s claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes.” In that part of the opinion in which the Court discussed the fact that proportional representation of races on a jury is not a constitutional requisite, it made the passing statement that there should be neither inclusion nor exclusion because of race.

But in the very next sentence, immediately following, the Court stated: “Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground.” It then discussed in detail the failure of the jury commissioners to familiarize themselves with eligible jurors without regard to race. It was carefuly emphasized that they admittedly knew members of the white race, but since they had made no conscious effort to acquaint themselves with qualified Negroes and other minority groups they had used a system which resulted in racial discrimination and was unconstitutional. Whether or not intentional Miclusion of Negroes would have been unconstitutional was not before the Court or involved in the case, and only mentioned in passing.

In Cassell there was no majority opinion as such, but a 4-3-1 split, with one justice not participating. See “The Supreme Court, 1949 Term,” 64 Howard Law Rev. 127 (1950).

The slight weight to be given dicta is clearly stated in Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821):

“The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court, in the case of Marbury v. Madison [1 Cranch 137, 2 L.Ed. 60]. It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

The actual holding in Cassell has been digested accurately in 31 Am.Jur., verbo Jury § 98, as follows: “Discrimination in selecting a jury on racial grounds means purposeful, systematic noninclusion because of color or race.” (Emphasis added.) The Supreme Court earlier stated the same rule in this manner:

“ * * * What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the empaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color.” Martin v. State of Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 50 L.Ed. 497. (Emphasis added.)

If I am wrong in this analysis of Cas-sell, and I am convinced otherwise, then it would be logical to conclude that all juries, grand and petit, state and federal, which have been selected since that decision, throughout the nation, wherever significant racial or ethnic differences exist and where jury commissioners consciously and conscientiously have' attempted to constitute jury lists on a nondiscriminatory, representative basis, then all indictments and convictions in such areas have been unconstitutional and invalid. This, I cannot believe the Supreme Court ever meant to be.

The Court first applied the Fourteenth Amendment to prohibit discrimination against Negroes in the selection of jurors in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). It then held that a State could confine the selection of jurors to males, to freeholders, to citizens, to persons within certain ages, or to persons meeting certain educational requirements. The Court recognized that the Fourteenth Amendment was designed primarily to make Negroes full citizens and as to the selection of juries Negroes were to be treated equally with whites.

At the same term, in Virginia v. Rives, 100 U.S. 313, 322-323, 25 L.Ed. 667, the Court stated, “It is a right to which every colored man is entitled, that, in the selection of jurors to pass upon his life, liberty or property, there shall be no exclusion of his race, and no discrimination against them because of their color.” (Emphasis added.)

Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1880), reiterated the proposition that exclusion of Negroes from juries because of their race or color was unconstitutional. Over and over again, the Supreme Court, in the last 80 years, has emphasized and re-emphasized the same rule concerning exclusion from jury lists because of race. Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883) ; In Re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505 (1891); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900) ; Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500, (1935); Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) ; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) ; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Brunson v. North Carolina, 333 U.S. 851, 68 S.Ct. 634, 92 L.Ed. 1132 (1948); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Ross v. Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352 (1951) ; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) ; Coleman v. Alabama, 84 S.Ct. 1152 (1964)

In order to insure that there is no exclusion of persons because of their race, the Supreme Court has directed jury commissioners to make a conscious effort to select a jury composed of a cross-section of the community. In Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416 (1953), Justice Reed, speaking for the majority, stated:

“Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.” (Emphasis added.)

in making their selection of prospective jurors commissioners must, indeed, are bound, to acquaint themselves with qualified members of all races and use a method which will insure selection from each major racial group. Hernandez v. Texas, supra; Cassell v. Texas, supra; Hill v. Texas, supra; Smith v. Texas, supra. In the latter case a unanimous court held: “Where jury commissioners limit those from whom grand juries are selected to their own personal acquaint-anee, discrimination can arise from corn-missioners who know no negroes as well as from commissioners who know but eliminate them.” Thus it was ruled that a commissioner who knows no Negroes must make a conscious effort to learn of qualified Negroes and select some of them in order not to discriminate.

On May 30, 1962 (reh. den. June 29, 1962), in United States ex rel. Seals v. Wiman, 304 F. 2d 53, at page 60, Judge Rives, the organ of the Court here, said:

“Prior to 1960> the Commissioners personally handed out the majority of the pink application cards (the remaining applicants came by the office), and they handed them out only one at a time to individuals whom they knew, although on one or two occasions Commissioner Allen thought he had asked a Negro minister for the names of qualified Negroes. The only sources of Negro applicants the Commissioners could name were the waiters at Morrison’s Cafeteria, the Negroes working at the downtown hotels, those at the shoe shine parlors, mail carriers, and a few they came in contact with through business. Commissioner Allen noted that they often choose names from the rosters of various organizations such as the Junior Chamber of Commerce or the Kiwanis Club. When asked if he had ever used the roster of a Negro club or association, he replied no, that no one had ever given him one. Both the Commissioners admitted that the bulk of their friends, social contacts, and acquaintances were white. On the basis of this evidence we see no sufficient effort to solicit the names of qualified Negroes beyond the admittedly narrow circle of ordinary contacts of the Commissioners.” (Emphasis added.)

In Moore v. New York, 333 U.S. 565, 68 S.Ct. 705, 92 L.Ed. 881 (1948), the Court indicated that the record was devoid of proof of systematic, intentional and deliberate exclusion of Negroes from jury duty, and thus the conviction of Negro defendants was sustained. One jury commissioner testified that he must have interviewed at least 500 Negroes and accepted maybe two or three dozen. Obviously, therefore, there was a conscious effort to obtain members of the Negro race to serve on juries, and clearly, in the absence of this intentional inclusion of some Negroes, the Court surely would have found that there had been discrimination.

Another plainly apparent mistake in the majority’s ruling here is that it does not explain adequately how intentional inclusion of Negroes on a grand jury could discriminate against a Negro accused. What evidence there is on the point tends to indicate that inclusion of six Negroes on the list substantially exceeded the proportion of Negroes in the parish. I already have alluded to the quality of the six. It surely is an unwarranted affront to such high type citizens of the Negro race to assume that they would discriminate against other members of their own race when serving upon a Grand Jury, in secret session, and requiring at least nine members to vote for an indictment. LSA-Constitution 1921, Article 7, § 42.

There has been no proof, nor proffer of proof, that substantially would establish that the jury commissioners purposely limited the number of Negroes placed on the grand jury venire. In fact, the evidence definitely shows that each commissioner acted separately, not knowing how many persons of each race would be placed on the list by the other eommissioners. It is clear beyond dispute that in this case, if anything could be made clearer, this defendant was benefited by the intentional inclusion of Negroes, not discriminated against; and it must be remembered that he was indicted and convicted of a heinous crime — aggravated rape, which conviction was affirmed h? the Louisiana Supreme Court. Moreovfr’ the Supreme Court never has sustained a defendant’s objection to exelus^on a &rouP from jury service except when the defendant was a member of excluded class, Fay v. New York, 332 L.S. 261, 287, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947) ; and it never has voided an indictment or conviction for conscious ¿reelusion of members of the same race or ethnic group.

The Court has directed States unequivocally not to exclude Negroes intention-any from grand jury lists, and now the majority here directs States not to include them intentionally. To me, this fundamentally cannot follow and is impossible of accomplishment. Nevertheless, the Supreme Court repeatedly has upheld the right of States to use selection procedures not based solely on chance but designed to select intelligent and morally fit jurors. LSA-R.S. 15:172 (1950), among other things, requires jurors to be literate and of good character. Ergo, jury commissioners here and in all States, not only must know these things, but in learning of them must know their race. This is a sine qua non.

This simple question may be posed— and j believe there is only one inescapable answer to it — how can a constitution-a] jury be formed in either a state or federal court if jury commissioners do not intentionally include members of various races ? This problem was recognized, at least partially, by Judge Jones in his concurring opinion in which he agrees with Judge Rives that “it may be that ‘the jury commissioners have an affirmative duty to include qualified Negroes in that list [the general venire list].’” But in the next sentence he seems to contradict himself when he states that “it will be assumed that this is not to be done purposefully lest the Constitution be infringed.” With all respect, to me this is a non sequitur in light of the unbroken line of Supreme Court decisions (and of this Court, see Wiman, supra), holding that jury commissioners have an affirmative duty to seek out, and place on such lists, qualified Negroes.

I Gibson, in Racial Discrimination on Grand Juries, 3 Baylor Law Rev. 29, 38-39 (1950), referring to certain language in the Cassell case, quite appropriately stated:

“ * * * the Court has disregarded the psychic nature of a prejudice — racial or otherwise. It is a sad fact, that notwithstanding the best and most noble efforts of all, our society discerns a difference between men on the basis of color. That prejudice can be rooted out only by stern combat within the minds of individual men. The rules of combat must be shaped by expanding and developing social institutions ; the approaches to battle must be through those institutions; the motivation to attain and secure the objective must come from within those institutions. This end cannot be accomplished by the court’s requirement of a process of selection of jurors which will make any ascertainable racial representation completely dependent upon chance. How can there be chance until there is open-mindedness ? A prejudice exists. It will pass, men of good-will hope, with the passage of time, but there must be the conscious recognition of it, the regret for it, the desire to destroy it, and finally the taking of action to abolish it. The design will have to be there, but systematic approach has been outlawed. If the Negro is systematically excluded, the Court condemns; if he is systematically included, the Court condemns. But the prejudice that has pointed out the Negro in the social system since before the founding of the Republic still points him out. All that can be done now is wrongfully to exclude him absolutely, or genuinely strive to give him equal share of that which is rightfully his. But the direction taken, and each step thereon, must be a conscious one. Where human discretion is a factor in selection, a general prejudice cannot be purged immediately and completely. The only way to counteract a prejudice is through a purposeful effort, which inevitably must take on a design. A prejudice can not merely be forgotten. It is a psychic force that must be met with a psychic force.” (Emphasis added.)

To know whether a prospective juror is qualified, a jury commissioner or the person recommending him to the commissioner must know who he is. To know a man requires that his race be known. If the commissioner knows he must not exclude Negroes, then he consciously will attempt to include them. To do so does not violate equal protection of the laws, because whites are also intentionally included. Each race is treated equally. How else can the Supreme Court’s positive mandates for jury selection from a reasonable cross-section of the community be met ?

If the majority opinion held that there had been intentional inclusion of a token number of Negroes and that this discriminated against Collins, that would accord with the rationale of Cassell; but the facts here conclusively contra-indicate a mere token inclusion. This is a case where the Jury commissioners unquestionably made a good-faith effort to place a representative cross-section of the community on the general venire and grand jury list. To hold that their action is unconstitutional because they knew which of these selected were whites and which were Negroes, is totally unfounded in law and absolutely opposed to the Supreme Court rulings in Akins and Brown v. Allen, supra.

Upon original hearing, an erroneous interpretation was made by me of certain evidence in the transcript. Since that evidence was the basis of my special concurrence in the original opinion, it is appropriate to set forth the pertinent portions of the brief by the Louisiana Attorney General setting the record straight:

“Notwithstanding the fact that the Court expressly held that ‘Even if the list of 20 had been selected from the general venire list, * * ’ this would not change the decision, the fact remains that from page 5 of the opinion through the first paragraph of page 11, the Court attempts to make out a case for a finding that the twenty names selected for the grand jury venire were in addition to the list of 300 names on the general venire.

“In this connection, Your Honors will recall that no argument was ever made by anyone suggesting this interpretation of Mr. Arce-neaux’s testimony. If you would but ask attorneys for appellant they will readily affirm that you are in error. Surely you do not want to perpetuate an erroneous finding which has not been suggested nor defended by any counsel in this ease.

“To understand Mr. Arceneaux’s testimony, you should consider the requirements of the Louisiana law which were carefully followed by this Jury Commission. In 1958 these Jury Commissioners were appointed. The jury venire which had been made up by the previous Jury Commission was purged. Therefore, the new Jury Commission started with an entirely new list of 300 names. On the same day that this Jury Commission made up the list of 300 names, they were ordered to select 20 names from this venire to make up the grand jury venire. In accordance with the further orders of the trial court, they proceeded that same day to draw by lot from the remaining 280 names a list of 40 names to serve for the criminal petit jury term of Court. Then they proceeded to draw by lot from the remaining 240 names a list of 35 names for the civil petit jury term of Court.

“Six months later the Jury Commission was ordered to meet and add to the remaining names on their original list which now contained only 205 names, so that the general venire list would have 300 names on it. Then in accordance with the trial court’s order they proceeded to select 20 names for the grand jury •venire. Then they drew by lot an additional 40 names for the criminal petit jury venire and they drew by lot an additional 35 names for the civil petit jury venire.

“This procedure was carried out each of the five times that they met prior to the time that they drew the venire which has been declared discriminatory by the Court’s March 11th opinion.

“With this brief summary of the Jury Commission’s method of selecting jury venires, it is readily apparent that the testimony of Mr. Arce-neaux to the effect that the grand jury venire of 20 names was selected from ‘the additions to the 300’ means simply that the names selected for grand jury duty were not taken from the 1958 list. Instead the grand jury venire was taken from those names added to the 1958 list, which 1958 list had been depleted because of the removal of those names drawn or selected for the various juries drawn since 1958. The additions to the 1958 list had to be made so that each selection and drawing could be made, in accordance with the law, from a list of 300 names.

“At no point did Mr. Arceneaux or anyone else say that the list of 20 names selected for the grand jury was ‘in addition’ to the list of 300 names which make up the general venire.

“On page 10 of the opinion of March 11, 1964, [329 F. 2d 100 at page 104], the Court states ‘Appel-lee concedes that Mr. Arceneaux so testified, * * *.’ Our supplemental brief signed by us on January 3, 1964 is subject to this interpretation, for on page 4 of our brief at the outset of paragraph numbered ‘V.’ we stated — ‘If the grand jury had actually been selected according to Mr. Arceneaux’s version, * * * ’ etc. It was not our intention to so concede and what we meant to say was — -‘If the Grand Jury venire had actually been selected according to the Court’s interpretation of Mr. Arceneaux’s version, * * * ’ etc. The plain and obvious fact is that Mr. Arceneaux’s testimony did not mean what the Court held that it meant. And we respectfully pray that the Court correct this error.”

It should be noted also that in the absence of evidence to the contrary, there is a presumption that officers in charge of the selection of a jury panel have performed their duty lawfully. Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903). See Anno. 1 A.L.R. 2d 1291, 1296 (1948). The proces verbal, an official record of the State Court, as to the procedure here employed by the jury commission, clearly refutes the incorrect inferences I drew, and the majority now draws, from the testimony of the Commissioners.

It is interesting to note that the Judicial Conference of the United States has suggested that the letter to key-men who suggest prospective jurors for federal jury service include the following statement: “In making up this list, we ask that you make a conscious effort to include both men and women from a variety of backgrounds and occupations so as to give us, as nearly as possible, a representative cross-section of your community.” (Emphasis added.) 267 F.R.D. 409, 514 (1960).

For these reasons I hereby withdraw my former special concurrence in the original opinion, my concurrence in the second opinion, and I respectfully dissent from the denial of the second petition for rehearing.

I consider it my duty, notwithstanding my lesser official position, insofar as the majority is constituted, to “stand up and be heard” on this grave constitutional question. Hence I render this dissent with all the sincerity I possess.

ADDENDUM TO DISSENT

BENJAMIN C. DAWKINS, Jr., District Judge.

Since the above dissenting opinion was written, and forwarded to Judge Rives for filing and printing, I have been advised that the Louisiana Legislature unanimously has passed its Act No. 161 of 1964, approved by the Governor, and, under the Constitution of this State, to become a part of its statutory laws on July 29, 1964, reading as follows:

“LEGISLATURE OF LOUISIANA ACT NO. 161 OF 1964

“To amend and re-enact as amended Section 180 of Title 15 of the Louisiana Revised Statutes of 1950, and to repeal all laws in conflict therewith.

“BE IT ENACTED BY THE LEGISLATURE OF LOUISIANA:

“Section 1. Section 180 of Title 15 of the Revised Statutes of 1950 be amended and reenacted as follows:

“SECTION 180 — SELECTION OF GRAND JURIES.

“Immediately after completing the general venire list, the commission shall select by drawing indiscriminately and by lot therefrom the names of twenty citizens, possessing the qualifications of grand jurors, who shall be subject to duty as grand jurors during the term of six months after the grand jury is empaneled and until a succeeding grand jury shall have been empaneled.

“The names of the persons so selected shall be written or typewritten on slips of paper, with no designation as to race or color, in the presence of the commissioners and they shall place the slips in an envelope, seal the same and endorse thereon the words ‘List of Grand Jurors.’

“Section 2. All laws or parts of laws inconsistent and in conflict herewith are hereby repealed.

“Unanimously adopted by the House of Representatives and Senate of the Louisiana Legislature, and approved by the Governor, July 4, 1964.”

To me, this clearly cures the gross constitutional mistake created by the majority opinion from which I still vigorously dissent. Moreover, it sets an optimum example of which both State and Federal courts throughout the nation might well take heed, in light of what I respectfully consider to be an impractical, impossible, indeed, wholly unjustifiable ruling by the majority, which flies directly into the teeth of the Supreme Court’s prior mandates.

APPENDIX A. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 20537

WOODMAN J. COLLINS,

Appellant,

versus

VICTOR Gr. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana,

Appellee.

BENJAMIN C. DAWKINS, Jr.,

District Judge (concurring specially).

I concur in the result reached by the majority here, but respectfully base my .action upon different grounds.

Since at least 1837, when the Supreme Court decided Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773, in an unbroken line of cases, that Court has refused to consider constitutional questions when the record discloses other grounds for decision, whether •or not they properly were raised by the parties. Some of the later cases reiterating this fundamental principle of judicial action are Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947) (which at 331 U.S. 568-575, 67 S.Ct. 1419-1423 sets forth .all of the cogent reasons for this policy); Peters v. Hobby, 349 U.S. 331, at 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955); Neese v. So. Ry. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Clay v. Sun Insurance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) vacating judgment at 265 F. 2d 522 (5 Cir.); and, most recently, Bush v. Texas, 372 U.S. 586, at 590, 83 S.Ct. 922, 9 L.Ed.2d 958, (decided March 25,1963).

In at least two decisions by this Court in recent years, this principle has been followed: Byers v. Byers, 5 Cir., 254 F. 2d 205 (1958); and Lone Star Import, Inc. v. Citroen Cars Corp., 5 Cir., 288 F. 2d 69 (1961), where it was said:

“ * * * Whatever may be the temptations — or the inability to resist them — in adjudicating ordinary matters either of fact or statutory construction courts are especially cautioned against the determination of constitutional questions not inescapably presented where some other basis less profound is actually available as a ground of disposition.

* * *»

Here, although mentioned in passing, and not the basis for the majority opinion, reference has been made to a simple legal ground upon which I think we ought to decree the nullity of the indictment under which appellant was convicted, without reaching the constitutional question.

LSA-R.S. 15:180 provides the method by which State grand juries shall be drawn:

“Immediately after completing the general venire list, the commission shall select therefrom the names of twenty citizens, possessing the qualifications of grand jurors, to be taken from different portions of the parish, as far as practicable, who shall be subject to duty as grand jurors during the term of six months after the grand jury is impaneled and until a succeeding grand jury shall have been impaneled.

“The names of the persons so selected shall be written on slips of paper, by the clerk, in the presence of the commissioners and they shall place the slips in an envelope, seal the same and indorse thereon the words: ‘List of Grand Jurors.’ ” (Emphasis supplied.)

It is to he noted that this statute expressly provides that the jury commission “shall” select the twenty persons from which the grand jury is drawn from the “general venire list” of 300 persons, provided for by LSA-R.S. 15:-179. The word “shall” is mandatory, as so used. The Louisiana Supreme Court lias held in two cases that where the Legislature, in establishing the method by which grand juries are to be drawn, uses “the word “shall,” such is mandatory, mot merely directory, language; and if mot followed literally, any indictments Teturned by such illegally constituted bodies are absolute nullities. State v. Kifer, 186 La. 674, 173 So. 169, 110 A.L.R. 1017 (1937) and State v. McLean, 211 La. 413, 30 So. 2d 187 (1947).

In this case, as pointed out by the majority opinion, the jury commissioners violated the express, mandatory requirement of the statute in not selecting the 20 names from the “general venire list.” Instead they selected the names of 20 persons in addition to the three hundred on the general list. Therefore, having violated the State law, in my opinion, and according to the Louisiana jurisprudence, this indictment was a nullity. It is on that basis — -and that alone — that I respectfully, and with full deference to the majority, submit that we should base our ruling. It is a mistake, I feel, that the constitutional question is considered at all; and it is my further opinion, without elaborating,* that the majority is basing its constitutional ruling upon dicta in Cassell, since that case involved systematic exclusion, not inclusion of Negroes.

Otherwise, I fully agree with what the majority has said, and hereby enter my special concurrence.

*

It is difficult, indeed, to reconcile this Court’s present holding that there constitutionally can he no “conscious inclusion” of Negroes on jury lists with earlier statements by the Supreme Court, and by this Go-urt.

In Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L.Ed. 1559 (1942), then •Chief Justice Stone, speaking for a unanimous Court, made the following statement at 316 U.S. 404, 62 S.Ct.:

“We think petitioner made out a prima facie case, which the state failed to meet, of racial discrimination in the selection of grand jurors which the equal protection clause forbids. As we pointed out in Smith v. Texas, supra, 311 U.S. 131 [61 S.Ct. 165, 85 L.Ed. 84], chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more. The jury commissioners, although the matter was discussed by them, consciously ■omitted to place the name of any negro on the jury list. They made no effort to ascertain whether there were within the county members of the colored race qualified to serve ■as jurors, and if so who they were. They thus failed to perform their •constitutional duty — recognized by •§ J of the Givil Rights Act of March 1, 1875, 8 U.S.G. § U, 8 U.S.G.A. § and fully established ■since the decision in 1881 of Neal v. Delaware, supra — not to pursue •a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds. Discrimination can arise from the action of commissioners who exclude all negroes whom they do not Jcnoio to be qualified and toho neither lenoto nor seelc to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. * * * ” (Emphasis added.)

On May 30, 1962 (reh. den. June 29, 1962), in United States v. Wiman, 304 F. 2d 53, at page 60, said:

“Prior to 1960, the Commissioners personally handed out the majority of the pink application cards (the remaining applicants came by the office), and they handed them out only one at a time to individuals whom they knew, although on one or two occasions Commissioner Allen thought he had asked a Negro minister for the names of qualified Negroes. The only sources of Negro applicants the Commissioners could name were the waiters at Morrison’s Cafeteria, the Negroes working at the downtown hotels, those at the shoe shine parlors, mail carriers, and a few they came in contact with through business. Commissioner Allen noted that they often choose names from the rosters of various organizations such as the Junior Chamber of Commerce or the Kiwanis Club. When asked if he had ever used the roster of a Negro club or association, he replied no, that no one had ever given him one. Both the Commissioners admitted that the bulk of their friends, social contacts, and acquaintances were white. On the basis of this evidence we see no sufficient effort to solicit the names of qualified Negroes beyond the admittedly narrow circle of ordinary contacts of the Commissioners." (Emphasis added.)

To say the least, jury commissioners are being placed in a virtually insoluble dilemma, where a constitutional jury-list may be an impossibility.