On J-anuary 17, 1909; officer Hutton, of the St. Louis police force, was shot and wounded while attempting to quell a. disturbance in the West End Club, in that city. The defendant, who- was present, was cálled before the grand jury as a witness to the shooting. This indictment is founded upon his testimony before that body, where he denied seeing the shot fired, and denied recollection of the events, testifying that he was drunk on that occasion. He was tried and convicted of perjury, March 3, 191.0; in the St. Louis Circuit Court. He appeals to this court to reverse the judgment, and urges in his brief the' following alleged errors:
1. There was no properly or legally summoned grand jury.
2. Eleven members, instead of twelve, constituted the grand jury at the time the defendant was *354brought before them to testify as to the things upon which the indictment is bottomed.
3. The witness, George Brazier, was not competent to testify, neither as to age nor as to his mental capacity, not being aware of the sanctity of an oath.
4. There was no affirmative evidence to go to the jury on the question of the ability of the defendant to recall what had occurred at the time of the shooting.
5. The instructions of the court were erroneous and misleading and misdirected the jury as to the law.
6. The statements made by counsel for the State, both in the opening and closing arguments, were outside the record and prejudicial to defendant.
We will take these points up in the above order.
First: The usual and proper order was made by the court to summon a grand jury. The usual and prqper return was made by the sheriff, showing that he had summoned twelve good and lawful men. It will be presumed that the intermediate steps provided by law — drawing from the wheel by the jury commissioner, etc. — were properly taken.
Second: Twelve men were duly accepted and sworn as grand jurors, and entered upon the discharge of their duties. The defendant was called before this body of jurors, and examined as a witness concerning a case then under investigation. The charge of perjury, upon which he was convicted, was based upon his testimony before such grand jury. It developed during the trial of defendant that on the day he was examined before the graud jury, one of tlieir number was not pi^esent, and that the testimony of defendant was given before eleven members only of the grand jury. It does not appear that the absent juror had been discharged from the panel. .
Defendant contends that eleven men could not constitute a grand jury for the purpose of hearing and *355deliberation. His position is that, although nine grand jurors may concur in finding- an indictment, not less than twelve can act as a jury, in hearing testimony and deliberating thereon. He urges that, although the law permits nine men to decide, it still requires the pres.ence of the other three at the hearing in order to get the benefit of their suggestions, opinions and arguments.
The question seems to be one of first impression in this State. The Constitution of Missouri, art. 2, sec. 28,, provides: “Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment ór a true bill. ’ ’
To carry this provision into effect, the Legislature enacted the following statute: “No indictment can be found without the concurrence of at least nine grand jurors; when so foupd, and not otherwise, the foreman of the grand jury shall certify under his hand that such indictment is a true bill, by the following indorsement thereon, thus: ‘A true bill. A. B., foreman.’ ” [Sec. 5090, R. S. 1909.]
Under this law, twelve men must be impaneled and sworn to constitute a legal grand jury, but after such organization, nine may concur in a finding. The law does not in terms require more than nine to participate in a hearing. The question raised here has been decided adversely to the contention of defendant by the courts of several states, construing provisions similar in substance to those found in the Constitution and laws of Missouri. [State v. Miller, 3 Ala. 343; State v. Copp, 34 Kan. l. c. 529; State v. Billings, 77 Iowa l. c. 421; State v. Ostrander, 18 Ia. l. c. 443; People v. Simmons, 119 Cal. 1; Smith v. State, 19 Tex. App. l. c. 108; State v. Lightfoot, 107 Ia. 344; State v. Williams, 35 S. C. l. c. 352.]
The case of Norris House v. State, 3 Green (Ia.) l. c. 515, cited and relied upon by defendant is limited by later decisions in Iowa, cited above, and approv*356ed only in so far as it holds that it is proper for the court to impanel the full' number and keep the number full, and hence is no authority for the proposition contended for here. Neither the diligence of counsel nor the researches of the court have discovered any decisions contrary to those above cited. The doctrine of-the above cases is summarized in 17 Am. & Eng. Ency. Law, (2 Ed.) p. 1281, as follows: “If a sufficient number of grand jurors has been impaneled, the absence, death, excusal, or discharge of one or more jurors does not affect the organization of the grand jury, or disable it from investigating criminal charges and finding indictments, providing the minimum number which is required to concur in the finding of an indictment remains and does so concur.”
We think the proposition thus enunciated sound in principle, and so hold..
The objection last discussed is the one on which defendant chiefly relies, as he says in his brief, this is “the one fact which is overshadowing in the whole matter, that there was never an indictment returned in accordance with the Constitution of the State of-Missouri.”
Third-. The record justifies the ruling of the trial court upon the competency of witness George Brazier. The question whether a boy eight and a half years old is a competent witness must be left largely to the discretion of the trial judge. The preliminary examination of the witness, as shown by the record, satisfies us, a;s it did the court below, that he was competent. His evidence before the jury, subsequently received, is clear and convincing as to his fitness to testify.
Fourth: There was ample evidence to justify the jury in finding that the defendant was able to recall what occurred at the time of the shooting.
*357Fifth: Tlie instructions were full and fair, and' counsel for defendant makes no attempt in Ms brief to argue them insufficient.
Sixth: The record shows no prejudicial error in the .remarks of counsel for the State to the jury.
Finding no reversible error in the record, the judgment is affirmed.
Kennish, P. J., and Brown, J., concur.