Motion is made to set aside tills indictment, on the ground of informality in the drawing of the grand jury. It not appearing that the defendant was held to answer before the finding of the indictment, he may move to set it aside on any ground which would have been good cause for challenge, either to the panel or to any Individual grand juror. C. Laws, p. 458, § 279.
By the minutes and records of the court of sessions, it appears that but forty-eight names were copied from the assessment roll from which the grand jury that presented this indictment were drawn, and the list of the names placed in the box, and those drawn, is signed only by the county judge, when our statute (C. Laws, p. 353, § 5) requires that fifty names shall he placed in the box, from which the county clerk, in the presence of the county judge and sheriff, shall draw the names of twenty-four persons, to serve as grand jurors, and that a correct list of the names placed in the box, and those drawn, shall be kept, and certified by the judge, clerk, and sheriff, and filed in the clerk’s office.
In drawing the grand jury the essential requirements of the act have not been complied with; fifty names should have been placed in the box, and the list and certificates should have been signed by the three officers, judge, clerk, and sheriff, and the signing of the one is insufficient. It is to be regretted that the officers appointed to perform the important duty of drawing and forming a grand jury, did not exercise more care and diligence in following the plain letter of the law. It is due to the county judge to say, that the certificates were properly signed by him, and that he has given information to this court that the imperfection in the list of names was an error in the person who made the copy. For the negligence of the other two no excuse appears*.
The objection of the defendant, in my opinion, is well taken, and it would have been a good cause of challenge to the panel in the court of sessions, under § 182, of the criminal code. The indictment must be set aside. The defendant, however, is not discharged—the case must be re-submittod to the grand jury—and if defendant has been admitted to bail, or deposited money instead, the bail or money must-be answerable for his appearance to answer a new indictment.