The State has filed a motion for a rehearing in this case in which it requests a reconsideration of appellant's motion to quash the indictment on the ground that the same was returned by an illegal grand jury. This matter was not discussed by us in the original opinion. The record shows that appellant filed two motions to quash the indictment. The first consisted of specific exceptions to each count thereof, and when the trial court overruled it, then he filed a second motion to quash based on the fact that the indictment was returned by an illegal grand jury. In our disposition of the case originally, we discussed only the court's action relating to the first motion, and since we felt constrained to sustain appellant's contention based on his first motion, we did not deem it necessary to enter upon a discussion of his second motion. However, under the case of Conklin v. State, No. 22,096, decided May 27, 1942, but not yet reported, (Page 210 of this volume) the State's motion is granted and appellant's second motion to quash is also sustained, and the order originally made by this court is re-affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 348