Wine, J.
Appellant was put to trial under an information charging him with the crime of assault with intent to kill alleged to have been committed by so assaulting one Boyd Cunningham, a member of the police force of Camden, Ouachita county, Arkansas. A verdict of guilty was returned by the jury assessing his punishment at five years in the State Penitentiary. From the judgment pronounced on that verdict comes this appeal.
Appellant, in his brief, urges a reversal of the judgment of the trial court for the following reasons:
I. The court erred in overruling appellant’s motion to quash the information.
II. The court erred in overruling appellant’s motion to quash the regular jury panel.'
III. The verdict is contrary to the law and to the evidence.
I. Motion to Quash Information. Pursuant to Amendment 21 to the Constitution of the State of Arkansas,' appellant was tried under an information filed by the Prosecuting Attorney and appellant insists that prosecuting him by information rather than by indictment returned by a grand jury is violative of his rights under both the state and federal constitution. Section 1 of Amendment 21 to the State Constitution reads as follows :
“That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.”
This amendment has been successively upheld by this court in many cases. Some of the more recent being Higdon v. State, ante, p. 881, 213 S. W. 2d 621; Washington v. State, ante, p. 218, 210 S. W. 2d 307; Penton v. State, 194 Ark. 503, 109 S. W. 2d 131; and Smith, et al. v. State, 194 Ark. 1041, 110 S. W. 2d 24.
The Supreme Court of the United States has many times held that a state may — if it so desires — provide for prosecution hy information rather than by indictment: Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. 111; Bolin v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 S. Ct. 287; and Gaines v. Washington, 277 U. S. 81, 72 L. Ed. 793, 48 S. Ct. 468. For a more recent pronouncement on this point, see the case of Paterno v. Lyons, 334 U. S. 314, 68 S. Ct. 1044, in which Mr. Justice Frankfurter, in his concurring opinion said: “. . . So far as the United States Constitution is concerned, the states may dispense with accusations by grand juries, it is for New York -and not for us to decide when the procedural requirements of New York law, not touching those fundamental safeguards which the United States Constitution protects, are satisfied.”
Appellant quotes and seeks refuge in the dissenting-opinion of Mr. Justice Black in the case of Adamson v. People of the State of California, 332 U. S. 46, 91 L. Ed. 1903, 171 A. L. R. 1223, 67 S. Ct. 1672, but the majority of that court held contrary to the views therein expressed by Mr. Justice Black and this court has followed the majority.
II. Motion to Quash Panel of Petit Jurors. Appellant, in apt time, filed his Motion to Quash Panel of Petit Jurors, in which appellant (omitting preamble) avers that: “in order to circumvent recent decisions of the United States Supreme Court reversing convictions in cases in which discrimination as is herein shown has been practiced a conspiracy, common understanding or method has been developed by which one or two Negroes are called whenever it appears that the unlawful method will be challenged. The defendant avers that the action of the Jury Commissioners of the present May, 1948, Term of the Ouachita Circuit Court, in naming-two Negroes as members of the regular panel, is not in good faith as no Negroes have ever been summoned for regular jury service for a period of fifty years, more or less; and as a result thereof all Negroes in Ouachita county, Arkansas, have been denied their constitutional right of trial by a jury of their peers.
“That the total population of Ouachita county, Arkansas, as of April 1,1940, according to sixteenth census, is 31,151,. divided as to the races as follows: white, 16,446 and Negro, 14,697, that the Negro population is more than forty per cent of the total population; that the total number of electors eligible for consideration as jurors is 7,719; that defendant avers and believes that of the total number of electors in Ouachita county, 1,496, or approximately 20°/o of the total number of electors, are members of the Negro race.
“That 32 persons were summoned as jurors for the May, 1948, Term of Ouachita County Circuit Court; and thát the said Jury Commissioners named only two qualified electors in the Negro race; that the said Jury Commissioners and their predecessors, for a period of 50 years, more or less, have never selected from qualified Negro electors, who had been, were, and still are, numerous on the list of qualified electors of Ouachita county, Arkansas, regular members of the jury panel; and further, the defendant avers and believes that the Jury Commissioners either of their own volition or upon a directive of the Judge of the said Ouachita County Circuit Court named the two present Negro memr bers of the panel in order to prevent the present panel from being challenged successfully.
“That the two Negro members of the present panel are exempt from Jury service under §§ 8294 and 8295 of Pope’s Digest of the Statutes of Arkansas.
“That no Negro has ever been named as jury commissioner in the Ouachita County Circuit Court, despite the fact that the Judge of the said Court is empowered to appoint three Jury Commissioners whose duty according to law is to select grand and petit jurors for the Ouachita Circuit Court.
“That there has been now and for a long time prior to a systematic exclusion of Negroes from jury panels despite the fact that the list of qualified jurors are designated by law according to race.
“The defendant charges that this constitutes a discrimination against him, a Negro, and such discrimination is a denial to him of equal protection of the laws of the United States of America as guaranteed by § 1 of the Fourteenth Amendment to the Constitution of the United States of America. Petitioner further alleges that due process of law is being denied by the State of Arkansas, through its administrative officers, and prays that the present Petit Jury panel be quashed.”
Appellant’s motion seems highly inconsistent in its various aspects.
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Wine, J.
Appellant was put to trial under an information charging him with the crime of assault with intent to kill alleged to have been committed by so assaulting one Boyd Cunningham, a member of the police force of Camden, Ouachita county, Arkansas. A verdict of guilty was returned by the jury assessing his punishment at five years in the State Penitentiary. From the judgment pronounced on that verdict comes this appeal.
Appellant, in his brief, urges a reversal of the judgment of the trial court for the following reasons:
I. The court erred in overruling appellant’s motion to quash the information.
II. The court erred in overruling appellant’s motion to quash the regular jury panel.'
III. The verdict is contrary to the law and to the evidence.
I. Motion to Quash Information. Pursuant to Amendment 21 to the Constitution of the State of Arkansas,' appellant was tried under an information filed by the Prosecuting Attorney and appellant insists that prosecuting him by information rather than by indictment returned by a grand jury is violative of his rights under both the state and federal constitution. Section 1 of Amendment 21 to the State Constitution reads as follows :
“That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.”
This amendment has been successively upheld by this court in many cases. Some of the more recent being Higdon v. State, ante, p. 881, 213 S. W. 2d 621; Washington v. State, ante, p. 218, 210 S. W. 2d 307; Penton v. State, 194 Ark. 503, 109 S. W. 2d 131; and Smith, et al. v. State, 194 Ark. 1041, 110 S. W. 2d 24.
The Supreme Court of the United States has many times held that a state may — if it so desires — provide for prosecution hy information rather than by indictment: Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. 111; Bolin v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 S. Ct. 287; and Gaines v. Washington, 277 U. S. 81, 72 L. Ed. 793, 48 S. Ct. 468. For a more recent pronouncement on this point, see the case of Paterno v. Lyons, 334 U. S. 314, 68 S. Ct. 1044, in which Mr. Justice Frankfurter, in his concurring opinion said: “. . . So far as the United States Constitution is concerned, the states may dispense with accusations by grand juries, it is for New York -and not for us to decide when the procedural requirements of New York law, not touching those fundamental safeguards which the United States Constitution protects, are satisfied.”
Appellant quotes and seeks refuge in the dissenting-opinion of Mr. Justice Black in the case of Adamson v. People of the State of California, 332 U. S. 46, 91 L. Ed. 1903, 171 A. L. R. 1223, 67 S. Ct. 1672, but the majority of that court held contrary to the views therein expressed by Mr. Justice Black and this court has followed the majority.
II. Motion to Quash Panel of Petit Jurors. Appellant, in apt time, filed his Motion to Quash Panel of Petit Jurors, in which appellant (omitting preamble) avers that: “in order to circumvent recent decisions of the United States Supreme Court reversing convictions in cases in which discrimination as is herein shown has been practiced a conspiracy, common understanding or method has been developed by which one or two Negroes are called whenever it appears that the unlawful method will be challenged. The defendant avers that the action of the Jury Commissioners of the present May, 1948, Term of the Ouachita Circuit Court, in naming-two Negroes as members of the regular panel, is not in good faith as no Negroes have ever been summoned for regular jury service for a period of fifty years, more or less; and as a result thereof all Negroes in Ouachita county, Arkansas, have been denied their constitutional right of trial by a jury of their peers.
“That the total population of Ouachita county, Arkansas, as of April 1,1940, according to sixteenth census, is 31,151,. divided as to the races as follows: white, 16,446 and Negro, 14,697, that the Negro population is more than forty per cent of the total population; that the total number of electors eligible for consideration as jurors is 7,719; that defendant avers and believes that of the total number of electors in Ouachita county, 1,496, or approximately 20°/o of the total number of electors, are members of the Negro race.
“That 32 persons were summoned as jurors for the May, 1948, Term of Ouachita County Circuit Court; and thát the said Jury Commissioners named only two qualified electors in the Negro race; that the said Jury Commissioners and their predecessors, for a period of 50 years, more or less, have never selected from qualified Negro electors, who had been, were, and still are, numerous on the list of qualified electors of Ouachita county, Arkansas, regular members of the jury panel; and further, the defendant avers and believes that the Jury Commissioners either of their own volition or upon a directive of the Judge of the said Ouachita County Circuit Court named the two present Negro memr bers of the panel in order to prevent the present panel from being challenged successfully.
“That the two Negro members of the present panel are exempt from Jury service under §§ 8294 and 8295 of Pope’s Digest of the Statutes of Arkansas.
“That no Negro has ever been named as jury commissioner in the Ouachita County Circuit Court, despite the fact that the Judge of the said Court is empowered to appoint three Jury Commissioners whose duty according to law is to select grand and petit jurors for the Ouachita Circuit Court.
“That there has been now and for a long time prior to a systematic exclusion of Negroes from jury panels despite the fact that the list of qualified jurors are designated by law according to race.
“The defendant charges that this constitutes a discrimination against him, a Negro, and such discrimination is a denial to him of equal protection of the laws of the United States of America as guaranteed by § 1 of the Fourteenth Amendment to the Constitution of the United States of America. Petitioner further alleges that due process of law is being denied by the State of Arkansas, through its administrative officers, and prays that the present Petit Jury panel be quashed.”
Appellant’s motion seems highly inconsistent in its various aspects. The substance of the said motion being that he, as a Negro, is being discriminated against ajid his constitutional rights violated by what he terms a systematic exclusion of members of his own race from juries in Ouachita county, yet at the same time admitting that two members of his own race were members of the regular jury panel, but avers that the jury commissioner’s action “in naming two Negroes as members of the regular panel is not in good faith, as no Negroes have been summoned for regular jury service for a period of fifty years, more or less.”
It does not seem important to a determination of this case what may or may not have been done or practiced in this respect in the past for a period of fifty years or any other number of years. Assuming that appellant might have produced proof that such practice may have been followed and may have been erroneously followed, if such practice was discontinued as is admitted by appellant in empanelling the jury present for service at the time of appellant’s trial, it would seem to be a violent presumption or conclusion on the part of appellant that the action of the jury commissioners in naming two Negroes as members of the regular panel was not in good faith. On the contrary, would it not be more reasonable and plausible to assume that the jury commissioners selected these two Negro members in perfectly good faith to strictly comply with the law of the land and to obviate any claim of discrimination. As to that portion of appellant’s motion which avers that the two Negro members of the present panel were exempt from jury service under 8294 and 8295 of Pope’s Digest of the Statutes of Arkansas. Section 8294 provides that no members' of certain professions or avocations or persons sixty-five years of age shall be compelled (italics supplied) to serve on grand or petit juries and § 8295 provides that any licensed undertaker or embalmer may be excused (italics supplied) from service on petit or grand juries. These sections are permissive and not a prohibition against such persons serving as members of petit and grand juries, but only permit such persons to claim exemption and such rights of exemption could not have here worked to the prejudice of appellant. It is not even suggested that such exemption was claimed by either of the two Negro jurors. The record in this 'case clearly shows that formal arraignment and drawing of the jury was waived by both appellant and the Prosecuting Attorney, and there is no showing that appellant exhausted all of his- peremptory challenges or that the two Negro members were challenged by the state or did not in fact serve on the trial jury.
Assuming that appellant’s figures are correct, and that there are 1,496, or approximately 20 per cent of the total number of electors of Ouachita county who are members of the Negro race, proportionate representation of races for selection as jurors has never been held to be mandatory: Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Thomas v. Texas, 212 U. S. 278, 53 L. Ed. 512, 29 S. Ct. 393.
Section 8306 of Pope’s Digest of the Statutes of this state provides: ‘ ‘ Selection by court. Jurors in both civil and criminal cases shall be selected as follows: The circuit courts at their several terms shall select three jury commissioners possessing the qualifications prescribed for petit jurymen, who have no suits in court requiring the intervention of a jury.”
There is nothing in this record to indicate or suggest that the discretion of the trial court in its selection of jury commissioners was violated or in any wise irregular or prejudicial to appellant. On the contrary, the converse would appear to be true, by the admitted fact that said jury commissioners selected and included in the regular jury panel two members of appellant’s own race. We are not apprised of any case in which this court or the Supreme Court of the United States has held that proportionate representation of race or class is prerequisite in the selection of jury commissioners.
Although not cited in the brief of either the appellant or Attorney General, we have closely scrutinized the case of Ware v. State, 146 Ark. 321, 225 S. W. 626, and distinguish this case in that it is here admitted that two members of the appellant’s own race were included in the regular jury panel, whereas in the Ware case (supra) both the grand and petit juries were made up exclusively of members of the white race, the appellant Ware being a. Negro. And furthermore, 31 Am. Juris. 621, § 90, states the rule to be as follows: “One objecting to a jury-panel on the ground of unlawful discrimination in the selection of persons for jury service must allege such discrimination by asserting facts sufficient to show its existence, and must prove or offer to prove the facts alleged. An affidavit or a verified motion or challenge is not sufficient, of itself, to support a charge of discrimination in the selection of a jury, and the filing of such affidavit or verified motion or challenge does not dispense with the necessity of offering proof of the alleged discrimination.”
What proof could appellant have offered to show discrimination or exclusion of members of his race from jury service with two such members admittedly standing by for service. This is particularly true when we consider appellant’s assertion that Negroes were, in fact, placed on the jury panel for the express purpose of circumventing successful challenge. We, therefore, cannot say that it was error for the trial court to overrule appellant’s motion to quash panel of petit jurors.
III. Sufficiency of the Evidence. We now pass to the appellant’s contention that the verdict is contrary to the law and the evidence. Section 2961, Pope’s Digest, of the statutes of this state reads as follows: “Assault witi-i intent to kill. Whoever shall feloniously, willfully and with malice aforethought, assault any person with intent to murder or kill . . . and their counsellors, aiders and abettors shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years.”
The evidence may be summarized as follows: Boyd Cunningham, the arresting officer, testified that in the course of his duties as a member of the police force of the City of Camden, on the night of February 25, 1948, he encountered the appellant, together with others on the streets of Camden, engaged in an altercation with a colored taxi driver over the payment or nonpayment of a taxi fare by the appellant. At the outset the officer requested only that the appellant and his associates quiet down and soften their language, that their actions and language already justified an arrest for disturbing the peace, as a considerable number of people had gathered around the appellant and his group. To this, appellant replied that “No white — - - ----- is going to arrest . . . ,” and- started walking away from the officer. The officer followed, and in attempting to take the appellant into custody, slipped and fell. A physical encounter then ensued, and the appellant wrested from the officer (Cunningham) the officer’s service revolver, which he (appellant) attempted to use on the officer until two bystanders rushed to the officer’s assistance. One of said bystanders held the cylinder of the revolver so that it could not be fired by the appellant.
This testimony was substantially corroborated by the two bystanders who came to the aid of the officer, and by one other witness. After considering all of the evidence, which we do not attempt to detail, and when giving it, as we must, its strongest probative force in favor of the State, the testimony was ample to warrant the jury’s verdict of assault with intent to kill.
While not urged in appellant’s brief, other assignments of error were set out in the motion for a new trial, all of which we have considered and found to be without merit. After a review of the instructions offered and given the jury and a consideration of the entire case, we find no reversible error.
The judgment of the Circuit Court is, therefore, in all things affirmed.
It is so ordered.