The opinion
BARHAM, Justice
(dissenting).
The majority has found no merit in any of the seven bills of exception upon which the defendant Terrance Marks, Jr., relies for reversal of his conviction. Since I have concluded that Bill of Exception No. 2 has merit, I must dissent from the conclusion of the majority as to this bill. *297 Bill No. 2 was reserved upon the refusal of the trial court to grant a motion to quash the indictment. Several allegations of error are raised in the motion to quash and in the bill reserved to its overruling, but the contention in which I find merit is that the jury commissioners did not follow the statutory requirements of former LSA-R.S. 15:179 and 15:188 in compiling the general venire and drawing the grand jury therefrom.
On May 13, 1966, an order of the Fourteenth Judicial District Court assigned June 20 as the beginning of a grand jury term for Calcasieu Parish, and instructed the jury commission to proceed to draw the grand jurors. On May 24 the jury commission met and purported to supplement the general venire box to 30 names and to draw 20 names for the grand jury for that session. It was this grand jury which indicated the defendant for aggravated rape.
At a hearing on the motion to quash the indictment the defendant called all five jury commissioners and the clerk of court to testify to their proceedings in compiling the general venire list of 300 and in drawing the 20 names for the grand jury. The testimony of these six witnesses, which is not at variance except in minute particulars, may be summed up as follows:
When the jury commission met in the office provided by the clerk of court, the clerk or his staff submitted to the commissioners the total number of veniremen to be drawn to complete the general venire and an allocation of the specific number of veniremen to be drawn from each ward in the parish. The formula for this allocation had been an exclusive determination by the clerk of court. The clerk alone assigned the number of veniremen to be drawn from a particular ward on the basis of the ratio of population or registered voters and the depletion of potential jurors from that ward by previous drawings from the general venire box or other deletions. If Ward 1, for instance, was entitled under the constructed ratio to furnish a total of 25 names in the general venire box and seven of those names had been pulled for service or deleted for other reasons, there would then be allotted to Ward 1 seven names to be selected and placed in the general venire box. The five jury commissioners did not participate in any of the above determination and had little if any knowledge of its origin or basis.
The clerk of court kept a card index by wards of names of potential jurors for the entire parish. This master list was created exclusively by the clerk of court without contribution from the jury commissioners, and some of the jury commissioners did not even know the sources from which the list was compiled. The clerk testified that the card file was drawn pri *299 marily from the voter registration rolls, but that he and his staff supplemented it from other lists and other sources from time to time.
When the jury commissioners arrived at the meeting, the list of names remaining in the general venire box was read so that there would be no duplication in their compilation of the general venire list. Each of the five commissioners had the exclusive assignment of one or more wards in Calcasieu Parish for the purpose of determining the names to be chosen for the general venire box. Each commissioner was supplied by the clerk with the number of veniremen to be selected for his ward and the list from which to select them. For example, Commissioner Robert Perry Hennigan had the exclusive responsibility of choosing the names for the general venire list from Wards 5 and 6 of Calcasieu Parish, and when he arrived at the meeting, the clerk informed him in writing how many names were needed from Wards 5 and 6 and supplied him with the list from which to draw those names.
Each of the five jury commissioners testified that he was responsible for the selection of the names for the general venire only from the particular ward or wards assigned to him. Mr. Hennigan was responsible for choosing the names for the general venire from Wards S and 6, Mr. Kinny from Wards 4 and 7, Mr. Love and Mr. Dufrene from Ward 3, and Mr. Derouen from Wards 1, 2, and 8.
The clerk, Mr. Hillebrandt, testified that 110 names remained on the general venire list when they began the selection of this particular grand jury. Thus these five, jury commissioners were required to select 190 names allocated by wards according to-the formula determined by the clerk before the meeting. In short, each commissioner chose the names for his ward or wards and was limited in the selection of the names by the cards presented to-him by the clerk, who had compiled them from sources known only to himself.
The names selected were given to a member of the clerk of court’s staff to be typed upon slips, and these slips were then dropped into the general venire box. The jury commissioners did not discuss with each other the names they were selecting for the general venire. The final or general venire list was not read by or to the full jury commission. There was no action or consideration in common. There was no exercise of approval or rejection of the complete general venire list by the commissioners.
At the conclusion of the meeting the jury commissioners signed a proces verbal in blank. The indication is that nothing was included in the proces verbal at that time except the 110 names which had remained in the general venire box from pre *301 vious drawings. Twenty names liad been drawn from the new general venire box for service on the grand jury, but they were not set forth in the proces verbal. The full 300 names from which the 20 grand jurors were drawn were not in the proces verbal signed by the jury commissioners.
The jury commissioners did not as a group or individually have any knowledge of the total makeup of the general venire. They had not at any time acted in concert. They had approved by their signatures a partially blank, therefore false, proces verbal. They had been limited in the selection of the members of the general venire to the names on a list prepared by the clerk of court from sources not fully disclosed. They had been limited in the selection of the members of the venire by a formula prescribed by the clerk of court and not prepared by them. Each was required to select prospective jurors only from certain wards, and did not exercise any control over the selection of veniremen from other wards.
The facts set out above are not controverted or at variance. The question presented for resolution is whether this conduct by the jury commission in the selection of the general venire, and of the grand jury which eventually indicted the defendant, was so illegal that the motion to quash the indictment should have been sustained.
For an answer to this question it is necessary to consider former LSA-R.S. 15:179, 15:180, 15:188, and 15:203, as follows :
“§ 179. At the time ordered by the district judge, the jury commission shall meet at the office of the clerk of the district court and, in the presence of two or more witnesses, shall select from the persons qualified to serve as jurors for their respective parishes three hundred persons, a list of whom shall be made out by the clerk under the supervision of the commission and said witnesses. This list shall be the general venire list and shall be kept complete and supplemented from time to time as hereinafter enacted. * * * ” (Emphasis here and elsewhere has been supplied.) “§ 180. Immediately after completing the general venire list, the commission shall select therefrom the names of twenty citizens, * * * who shall be subject to duty as grand jurors * *
“§ 188. Not less than once in every six months, computing the time from the date of the first drawing by the jury commission, the jury commission shall meet at the clerk’s office and after being furnished by the clerk with a list of those who have served as regular jurors since the previous drawing of the general venire, shall in the presence of not less than two witnesses, examine the original venire list and strike there *303 from and take from the general venire box the names of those who have served, who are known to have died, removed from the parish, become exempt or disqualified to serve as jurors, since their names were entered on the list. The commission shall then supplement the original list and the slips in the box with the names of the same number of good and competent men from the qualified jurors of the parish, as have been taken from the box and erased from the list, so as to keep the number of names in the general venire box and on the jury list at the original standard of three hundred. The clerk of the district court at each meeting of the commission shall make a proces verbal of its acts in detail and record the same in a book to be provided for the purpose by the police jury, which shall at all times be open to the inspection of the public. Said proces verbal shall be signed by the clerk of court, the members of the commission present and the voitnesses
“§ 203. It shall not be sufficient cause to challenge the venire selected for any session of the court or portion thereof or for service at any time in any parish or district of this state, or to set aside the venire, because some of the jurors on the list are not qualified to act, nor because of any other defect or irregularity in the manner of selecting the jury, or in the composition, summoning or proceedings of the jury commission, unless some fraud has been practiced or some great wrong committed that would work irreparable injury; provided, that it shall be good grounds to challenge, for cause, any juror who is not qualified by law to act.”
State v. Sheppard, 115 La. 942 , 40 So. 363 (1906) ; State v. Clifton, 247 La. 495 , 172 So.2d 657 (1965), and former LSA-R.S. 15:203 are relied upon by the State as authority for holding that the actions by the jury commission were mere irregularities and therefore not factual to the general venire or the indictment.
In the Sheppard case a lawyer who had a large practice before the court suggested certain names to the jury commission. That body finally though tardily objected, and the interference terminated. Sheppard was decided under Act 135 of 1898, Section 15, which corresponds to former LSA-R.S. 15 :203. The court held that the conduct was merely irregular, and that there was no fraud or great wrong committed by the jury commissioners to injure the defendant in any way. The court stated that the statute (Section 15 of Act 135 of 1898) should not be considered mandatory in all of its details.
In State v. Clifton, supra, decided almost 60 years later, the jury commissioners in advance of their meeting prepared lists of those they intended to sug *305 gest for inclusion on the general venire. The lists were submitted to the clerk of court, who checked the names thereon against a card index file maintained in his office to ascertain whether these persons were unable to read and write, had any physical infirmity, or were otherwise •disqualified to serve as jurors. A comprehensive list was then typed in advance •of the meeting. When the official meeting was held, the commissioners and the clerk of court, acting as a body and in the presence of witnesses, went over the master list to determine whether the persons were qualified and to make any additions, deletions, or other changes they considered necessary. After eliminating persons not qualified and supplementing the master list, the commission approved and compiled a general venire list. The court said:
“The method employed by the individual jury commissioners in preparing their lists in advance may, upon the first impression, appear to be a departure from the obvious intendment of LSA-R.S. 15 :179, requiring that there be supervision and common deliberation by the jury commissioners as a body over the names composing the general venire list, * * * The final list, then, was •made under their supervision after common deliberation regardless of the plans and preparations which preceded the meeting. There was, therefore, a substantial compliance with the requirement of LSA-R.S. 15:179 that at the time of the meeting the jury commission shall select from the persons qualified to serve as jurors three hundred persons, a list of whom shall be made under the supervision of the commission.
“Even if the practice outlined is considered technically irregular, it is not such an irregularity that the proceedings of the jury commission must be invalidated. For appellant’s contention that the quoted portion of LSA-R.S. 15:179 is mandatory in all its details is not supported by the law of this State. To the contrary, a variation from the strict letter of this law does not permit the composition of a grand or petit jury to be set aside because of insignificant technicalities or irregularities, unless there is a showing that some fraud has been practiced or great wrong committed which would work irreparable injury to the accused. [Citations omitted.] * * ”
Having concluded that there was substantial compliance and the absence of fraud or irreparable injury, the court in Clifton refused to quash the indictment. In State v. Sturgeon, 127 La. 459 , 53 So. 703, 704 (1910), the court stated:
“It must be borne in mind, where there is substantial compliance with the statute, unless there is fraud practiced or wrong inflicted, irregularities are not fatal to the legality of the general venire or the indictment. State v. Sheppard * *
*307 State v. Clifton, supra, states the law of Louisiana under the former Revised Statutes which are applicable to the case at hand. The court in that case was very-careful to define the circumstances complained of and to delineate the reasons for holding the jury commissioners’ acts as “mere irregularities”. The court in Clifton recognized that our law requires common deliberation and concerted action by the jury commission in the selection of the general venire, and it found substantial compliance with this requirement. It held that because there was substantial compliance, the practice complained of was a technical irregularity. In the Clifton case not only was there a failure to show fraud, but there was a complete absence of a possibility of fraud because of common deliberation and compilation of the venire before witnesses.
To the contrary, in the instant case, even without a showing of actual fraud, the conduct of the jury commission, which was in complete and direct violation of the statute, created such opportunities for fraud and great wrong that a showing of actual fraud is not necessary. These practices were not “mere irregularities”; they were a total disregard for and pretermission of regularities. There was absence of any regularity or compliance with the requirements of the law. The purpose of a jury commission was defeated. The absolute requirement of public selection before witnesses not only was derogated but was in fact nullified by such practices. What purpose did witnesses serve when they were denied access to the names of the general venire and were required to sign an incomplete proces verbal? State v. Feazell, 114 La. 533 , 38 So. 444 (1905). Without imputation of fraud to these well-intentioned commission members, such misfeasance and non-feasance constitute constructive fraud.
Under our Constitution and statutes no-one man, not even a district attorney, can initiate the prosecution for a capital offense, yet the practices of this jury commission made it entirely possible for the defendant to stand trial for a capital offense after indictment by a grand jury selected by a single commissioner. Only 20 men were named for the grand jury from the 300-man list. It can be assumed that each of the jury commissioners had selected individually, without assent from the other commissioners, at least 20 names on the general venire list. Therefore the grand jury which indicted the defendant could have been composed of persons chosen by the independent selection of any one of the five commissioners. Certainly the grand jury which indicted the defendant was not selected by these five men from a venire compiled after common deliberation. The conduct here is fraught with danger and possibility of fraud, and is more than a mere irregularity.
*309 Finally, it must be concluded that the prospective veniremen were selected by the clerk, and that only a second or more definitive selection was made by the jury commissioners. This is also fraught with grave danger. I do not impute wrongdoing to the clerk of court, but to vest this authority in him is to reject the need for a jury commission. See State v. Newhouse, 29 La.Ann. 824 (1877), wherein the court rejected the inspection and approval by the jury commission of a “cut and dried” list. There is no need to show prejudice in the face of an irregularity of this kind. The complete lack of any regularity or compliance is such a great wrong per se that this court would be irrational to burden the defendant with the onus of proving fraud or specific irreparable inpiry.
The constitutional guarantee that one may be tried for a capital offense only upon indictment by grand jury is made meaningful by the statutes which describe and prescribe the manner for the selection of that grand jury. To give such strength and effect to former LSA-R.S. 15:203 as to strike down all of the statutory requirements for the selection of the general venire and the grand jury would, in effect, deny the right to indictment by grand jury, as understood by the framers of our Constitution, our lawmakers, and our courts. This court should not interpret one statute so as to read out and make inoperative two other statutes of equal value within the same title.
Our jurisprudence by comparative statutory analysis has correctly declared that compliance with each and every detail of former LSA-R.S. 15:179 and 15:188 is not mandatory. Sheppard and Clifton, however, indicate the limits (“substantial compliance”), and are not authority for plunging this construction and interpretation into the abysmal void of statutory eradication and obsolescence. I believe that these statutes are meaningful and effective, and that total disregard of and non-compliance with their terms and intendment are fatal.
The conduct of the jury commissioners here was completely irregular and illegal. It deprived the defendant of the constitutional guarantee not to be tried for a capital offense except upon indictment by a grand jury as defined and intended by Constitution, statutes, jurisprudence, and history. To hold to the contrary is to extend the right but to veritably cancel and withdraw the naturally ensuing privilege and protection.
Having concluded that the motion to quash the indictment should have been maintained, I express no opinion as to the other bills of exception.
I respectfully dissent.
BARHAM, J., is of the opinion a rehearing should be granted.