While the record shows that Williamson, the foreman of the grand jury, was excused for the term on account of sickness on August 3d, this did not necessarily, eo instanti, render him ineligible for further service, and he did not cease to be a member of said body until he had availed himself of the excuse, or until replaced by a successor who was sworn in in his place. While the court excused Williamson on the 3d, an order was made 'to'summon persons from whom his successor should be selected returnable on the- 5th, and the fact that said Williamson was excused on the 3d, would not necessarily invalidate his acts or render the grand jury an illegal body because he served on same between the granting of the excuse and the swearing in of his successor. The court could *49no doubt discharge a grand juror peremptorily, and so as to go into effect immediately, and before his place was supplied by another; but when the court merely excused him, upon request, and did not then and there swear in his successor, but provided for doing so on a future day, and the said excused juror failed to avail himself of said excuse until his successor was found and sworn in, he was not a disqualified or illegal grand juror, and the acts of the grand jury cannot be nullified because he continued to discharge his duty. Moreover, the court did not treat the excuse as an immediate discharge of Williamson, as it received from him, as foreman of the grand jury, this indictment in open court on the 5th, and which was presumptively before the swearing in of another foreman and another grand juror, as there is nothing in the record to indicate that Williamson’s successor was sworn in before the return of the indictment on the 5th. From aught that appears, Williamson did not avail himself of the excuse at once, but remained at his post, for the purpose possibly of passing on bills and returning them into court in cases in which he had heard the evidence, and which were not, and could not have been, heard by his successor. Of course, the court could not lawfully substitute him until he was discharged or excused; and, if .the record showed that another was sworn in without first getting-rid of him, it would doubtless be an illegal body.— Peters v. State; 98 Ala. 38, 13 South. 334. But the vacation of one and swearing in of the other can be almost contemporaneous, and the chief purpose of the law in this regard is to prevent both of them from being on the grand jury at the same time, and the fact that the court, when excusing Williamson on the 3d, provided for his successor on the 5th, and continued to treat said Williamson as foreman on the 5th, is a strong *50indication that it was not intended that the excuse granted on the 3d was to go into effect immediately. It does not appear that Williamson was discharged for incompetency or misconduct; and, while this proceeding was a little irregular, this man had been sworn in as a regular and competent grand juror, and his failure to vacate immediately after being excused, when taken in the light of all the circumstances, did not render him an illegal member of the body, and it would be a technical obstruction of justice to strike down all the indictments found between the said excuse and the swearing in of his successor. There was, in legal effect, a waiver of the excuse for the time being, both by the court and Williamson.
We hold that the facts set forth did not affect the legality of the indictment.
All the Justices concur.