The defendant has petitioned for a rehearing. In the petition it is said that this court has failed to decide "whether or not the indictment is void because the grand juror John McIlrath participated in the deliberations of the grand jury resulting in the indictment while he was disqualified to act as a grand juror in the case." This question was fully considered in State v. Rother, ante, 875, 219 N.W. 574, and inasmuch as the indictment here was returned by the same grand jury and precisely the same motion was made to set aside the indictment as in the other case, it follows that this case is controlled by the ruling in the former case. Whether the indictment must be set aside will, of course, depend upon whether it is shown that John McIlrath was disqualified to act as a grand juror. The legal principles involved were fully discussed in the opinion in State v. Rother, supra, and if the alleged bias of said McIlrath is established it will, of course, be the duty of the district court to quash the indictment.
The defendant further asserts that certain objections raised to the sufficiency of the indictment were not considered or decided in the former opinion. It is true defendants did assail the sufficiency of the indictment on the alleged grounds that it failed to charge that any fiduciary relation existed between the defendant and Johnson (the alleged owner of the property charged to have been embezzled) at the time it is claimed that the crime of embezzlement was committed and *Page 937 that the indictment further failed to charge that the property claimed to have been embezzled came into the possession of the defendant by virtue of such fiduciary relation. In view of the emphasis defendant placed upon the assignment of error based upon the alleged disqualification of the juror McIlrath, and the claims advanced upon the oral argument as to the ability of the defendant to establish this disqualification by overwhelming evidence, we were inclined to the view that this question would be determinative of the action and that the question of the alleged insufficiency of the indictment (which was raised by objection to the admission of evidence) would not likely arise upon another trial and, consequently, it was not discussed in the former opinion in this case. The question, however, was considered and all the members of the court were then and are now of the opinion that the indictment is not defective in the particulars charged. In other words, we are of the opinion that the indictment charged the fraudulent appropriation by Rother of property which had been intrusted to him. Comp. Laws 1913, § 9929.
Rehearing denied.
NUESSLE, Ch. J., and BIRDZELL, BURKE, and CHRISTIANSON, JJ., and LEMBKE, Dist. J., concur.