
    No. 11945.
    The State of Ohio v. Deiter.
    Decided October 19, 1909.
    Error to Circuit Court of Pike county.
    
      Mr. James A. Douglas, prosecuting attorney, for plaintiff in error.
    
      Mr. S. L. Patterson and Mr. C. PI. Henkel, for defendant in error.
   Judgment reversed and judgment of the court of common pleas affirmed. Grounds stated in journal entry.

This court is of opinion that the circuit court did not err in refusing to reverse the judgment of the court of common pleas in so far as it overruled the defendant’s plea in abatement, this court being of opinion that the question of the legality of the selecting and drawing of the grand jury may not be raised by plea in abatement to the indictment, and with respect to that holding the said judgment of the circuit court is affirmed.

But this court is of opinion that the discharge of the petit jury, and the ordering of a new petit jury, was within the discretion of the trial court, and it not appearing that such discretion was abused, or that the petit jury which tried the defendant was not an impartial nor disqualified jury, no error was committed by the trial court in that behalf, and the judgment of the circuit court in reversing the judgment of the court of common pleas for said alleged error is hereby reversed, and that of the common pleas affirmed.

Summers, Spear, Davis, Shauck and Price, JJ., concur.  