The indictment in this case was returned on May 22, 1962. The case has not been inactive. The defendant has now filed a motion to dismiss the indictment on the grounds that the grand jury which returned it was not selected or' summoned in accordance with the law.

28 U.S.C. § 1861 declares who are competent to serve as jurors. Paragraph, numbered “(4)” which allowed this court, to recognize a declaration of incompetence by the law of the state in which-the district court is held was withdrawn-from the statute in 1957. It is the withdrawal of this section that has prompted, the attack in this and many other criminal cases pending in this court. The-question presented is: “Does the withdrawal of paragraph ‘(4)’ compel this-, court to include in its jury lists those-persons who are exempted from jury-duty under Mass.G.L. c. 234 § 1?”

It is only by equating “incompetency to serve” with “exemption from: service” that the defendant’s argument, can have any validity, but they are not. the same. A person who is incompetent: to serve cannot serve; a person who is: exempted from jury duty may serve.. Munroe v. Brigham, 19 Pick. 368, 36, Mass. 368, has held that exemption is a personal matter which can be waived.

*1021Since this court has existed, it has recognized the exemptions provided by G.L. c. 234 § 1 as reasonable and there is no evidence now that by not including the exemptees in the jury lists of this court that any one is conducting a systematic and intentional exclusion from the jury lists of any particular economic, social, religious, racial, geographical or political group.

In denying the motion to dismiss the indictment, I rule as a matter of law that the withdrawal of paragraph “(4)” from 28 U.S.C. § 1861 called for no change in this court’s method of drawing jurors. I further rule as a matter of law that the failure to include in our jury lists those persons exempted under Mass.G.L. c. 234 § 1 in no way violates any constitutional right of this defendant.