Appellant, on motion for rehearing, again urges that the court below should have quashed the indictment based on appellant's contention that it was returned by an illegal grand jury. A charge of murder was pending against appellant on a previous indictment and the trial had been set down for the 15th day of September at which time a motion was filed to quash the indictment. Upon request of the District Attorney for time to investigate the point of law involved the court granted until 10 o'clock September 16, and recessed court until that time. Presumably the court and District Attorney concluded that the motion to quash was good. About 5:30 o'clock in the afternoon of September 15 the court directed the sheriff to reassemble the grand jury which had been discharged for the term. The first ground now urged against the indictment returned by the reorganized grand jury is that the court having recessed until 10 o'clock on September 16 was without power to make an order on September 15 directing the reassembling of the grand jury. We think there is no merit in this contention. If the court had undertaken to make some order in the particular case which had been passed to the next day appellant might have had just ground of complaint.
All the grand jurors were summoned by the sheriff to reassemble at 8 o'clock on the morning of September 16. Eleven responded. Another juror was impaneled in lieu of the one man absent, and the grand jury reorganized, and the indictment in the present case returned against appellant. Art. 372, C. C. P., regarding the reassembling of a grand jury which has been discharged for the term is silent as to the character of summons by which they may be recalled. Appellant's second contention *Page 342 is that Art. 345, C. C. P., which requires three days' notice to grand jurors prior to the first day of the term of court should be read into Art. 372. Concisely stated, his proposition is that if all the grand jurors are summoned to reassemble and some fail to respond that the court is powerless to impanel other jurors in place of the absentees until the expiration of three days; in other words, the court must remain idle for three days to ascertain if the absent grand jurors will in that time respond to the re-summons. We cannot give assent to such contention. Art. 372, C. C. P., being silent as to the method of reassembling a discharged grand jury, and silent also as to the required notice therefor, discretion regarding such matters is necessarily lodged in the trial judge, and unless his acts be such as to show a clear abuse of such discretion, one indicted by such reorganized grand jury has no ground of complaint.
The motion for rehearing is overruled.
Overruled.