
    STATE of Missouri, Respondent, v. Herbert BURNFIN, Appellant.
    No. KCD 28630.
    Missouri Court of Appeals, Western District.
    Feb. 27, 1979.
   MEMORANDUM AND ORDER

The defendant herein prosecuted his appeal to this Court from a conviction for First Degree Murder and sentence of life imprisonment, which judgment and conviction were affirmed by decision of this Court on December 5, 1977 and our mandate issued on February 9,1978. State v. Burnfin, 560 S.W.2d 283. In so doing, this Court followed the binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled the Missouri jury selection statutes as they pertained to the exclusion of women from jury service to be constitutional. The Missouri decision in Duren was thereafter held to be unconstitutional and void by the Supreme Court of the United States in the case of Duren v. State of Missouri, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

The Supreme Court of the United States granted a writ of certiorari to the defendant here and thereafter that proceeding in the Supreme Court was numbered 77-6701, Burnfin v. State of Missouri.

This Court has received from the Supreme Court of the United States its mandate dated February 13, 1979 in the above entitled cause No. KCD 28,630, ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant, Herbert Burnfin, raised the constitutional question as to jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, by moving to quash the jury panel in his criminal trial at the earliest possible time and preserved the question throughout the criminal trial and appeal to this Court.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED That our decision herein of December 5, 1977, and our mandate herein of February 9,1978, be and the same are hereby withdrawn and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED That the defendant, Herbert Burnfin, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corree-tions of Jackson County, Missouri pending further proceedings in the court below.  