¶1(dissenting).
¶2I 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.
¶3La.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.
¶4Notwithstanding 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.
¶5I respectfully dissent.