#### STATE of Louisiana v. Donald Ray HOLLIS.

No. 54964.

Supreme Court of Louisiana.

Oct. 28, 1974.

Dissenting Opinion Nov. 7, 1974.

C. Jerome D’Aquila, Public Defender, New Roads, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Charles H. Dameron, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Defendant, Donald Ray Hollis, was charged under a bill of information with violation of La.R.S. 14:25 (accessory after the fact). He was tried, convicted as charged by a jury and sentenced to serve five years in the custody of the Department of Corrections. On appeal, defendant relies upon one perfected bill of excep*269tions to obtain reversal of his conviction and sentence.

This bill was reserved to the overruling by the trial judge of defense counsel’s motion in arrest of judgment. The motion was based on the ground that the petit jury venire was improperly constituted in that women were permitted to serve thereon who had not previously filed with the clerk of court a written declaration of their desire to be subject to jury service in conformity with La.Const. art. 7, § 41 (1921) and La. Code Crim.P. art. 402 (1966).

Recently, in State v. Kibby, 294 So.2d 196 (La.1974), we held that the correct procedural vehicle for asserting an identical complaint is a motion to quash. A complete discussion of the appropriate codal articles and jurisprudence is contained in the Kibby opinion. It would serve no useful purpose to reiterate it here. Failure to object to the drawing, selection or composition of the grand or petit jury venire by way of a motion to quash waives the complaint. It cannot be raised for the first time in a motion in arrest of judgment.

Hence, the trial judge properly denied the motion in arrest of judgment.

For the reasons assigned, the conviction and sentence are affirmed.

BARHAM, J., dissents with reasons.

DIXON, J., dissents.

BARHAM, Justice

(dissenting).

I believe that defendant’s complaint of the presence of women who had not filed the requisite declaration to serve on his jury is a proper ground for a motion in arrest of judgment under Code of Criminal Procedure art. 859(4). The error of which the defendant complains is not contemplated by Code of Criminal Procedure art. 535, subd. B(2), which requires a motion to quash before trial if there is a complaint that the general *venire*or the petit jury *venire*was improperly drawn, selected or constituted. There is no question in the present case (at least according to the majority in many previous decisions) but that the defendant’s general venire and petit jury venire were improperly constituted. Defendant therefore could properly have filed a motion to quash before trial. Had the jury *selected to try*defendant not contained women who had failed to file the required declaration, no motion in arrest of judgment under La.C.Cr.P. art. 859(4) would lie. However, in this case, the *tribunal that tried the case*did not conform to the requirements of Article VII, § 41 of the Louisiana Constitution (again according to many majority opinions previously issued out of this Court) and defendant was therefore entitled to have his motion in arrest granted.

La.Const. Art. VII, § 41 requires “ * * * that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to service.” Contrary to that constitutional provision the tribunal that tried the case contained women who had not filed a prior declaration of their willingness to serve. The majority of this Court has repeatedly held that a panel so composed is unconstitutional.

Notwithstanding my opinion that defendant was entitled to have his motion in arrest granted *under previous holdings by a majority of this Court,*I reiterate the belief I have expressed in numerous concurrences and dissents that exclusion of women from jury service in unconstitutional.

I respectfully dissent.