The defendant was convicted of the crime of embezzlement and appeals from the judgment of conviction and from the order denying a motion for a new trial. The indictment was returned by the same grand jury which returned the indictment in State v. Rother, ante, 875, 219 N.W. 574; the same motion was made to set *Page 936 aside the indictment in this case as was made in the other, the same proceedings had thereon and the same ruling made by the trial court.
It follows from what has been said in State v. Rother, supra, that the judgment of conviction must be set aside, and the cause remanded for further proceedings conformable to law.
It is so ordered.
NUESSLE, Ch. J., and CHRISTIANSON, BIRDZELL, and BURKE, JJ., and LEMBKE, Dist. J., concur.
BURR, J., being disqualified, did not participate; Honorable F.T. LEMBKE, Judge of the Sixth Judicial District, sitting in his stead.
On Petition for Rehearing.