
    The State v. Jacobs.
    Persons whose names are not entered on the jury-list kept by the County Court are not qualified to be grand jurors; and where one or more of such persons are on a grand jury it is a valid objection to any bill found. (Note 1(3)
    Where it is discovered that a grand juror is incompelent, the proper practice is to dismiss him ; and if the number be thereby reduced below that of a competent grand jury, it should be made up by drawing from the original venire. Jf the original venire has been exhausted, others may be summoned for the puipose.
    Where a grand jury was discharged because of a valid objection to three of their number and another grand jury was summoned and impaneled: Held, That the latter was not a legal grand jury.
    A venire fac.ias issued to summon a new grand jury while the first is recognized as a legal grand jury and before any steps have been take to set the first, aside is illegal
    Appeal from Galveston. The record in this case disclosed the following facts : On the 29th of May,'A. D. 1850, a grand jury of sixteen persons were impaneled and sworn for the county of Galveston. On the 31st of the same month the following entry was made upon the record: “This day the grand jurv came into comí-, and the district attorney, on motion, challenged the array of the grand j'nrors on the ground that three of the grand jurors’ names were not enrolled on the list required to be kept by the County Court of this county, to wit, David II. Grove, James Paul, and Garret Man Beutlmsen.” The motion of the district attorney was sustained, and a venire facias was awarded commanding the sheriff! o summon thirty-six legally qualified jurors, returnable on the same day, from which a grand jury should be drawn. The, record showed that this second venire facias had issued on the day before the array had been challenged, and this venire was returned into court on the same day, to wit, the 31st of May; and a new grand jury was drawn and sworn. This last grand jury returned a bill against the defendant for a violation of the statute against playing at cards; a capias was ordered; the defendant was arrested and entered into recognizance for his appearance at the next term of the court. -The defendant, by bis counsel, moved to quash the indictment on the following grounds:
    1st. “That the grand jury who found the pretended bill of indictment were not summoned and impaneled according to law.”
    2d. “That the bill of indictment was not found by any grand jury.”
    The motion was sustained and the indictment quashed. The district attorney appealed.
    
      Attorney General, for the appellant.
   LIPSCOMB, J.

There are two objections taken to the grand jury by which the bill in this case was returned :

1st. That the first was a legal grand jury, and there was no- ground for sustaining the challenge to the array.

Note 16.—Van Hook v. The State, 12 T., 252,

2d. That this second grand jury was drawn from a venire facias that had been -illegally Issued before the motion challenging the array had been made, and whilst the‘first was recognized as a legal jury.

The objection, supposed by the court below tobe fatal to the first grand jury, that three of their members who had been sworn were not qualified jurors because their names had not been entered on the jury-list kept by the County Court was certainly valid as to the qualification of those persons,, and would have been a valid objection to a bill found by the grand jury whilst those persons composed a portion of its members. But it would not follow that it would disqualify the remaining- members of the jury. Had the names of the three illegal jurors been dismissed from the panel, there would have remained still a legal grand jury of thirteen members. If, however, the withdrawal of the illegal jurorsjiad reduced the jury under thirteen, the.lowest number constituting a grand jury, it. would have been competent for the court to have made up their.number by drawing a sufficient number from the original- venire, if it had not been exhausted; and if it had been, by summoning others for that purpose. (Hart. Dig-., art. 1651.) We are therefore of opinion that the court below, in quashing the first panel of grand jurors, erred, and that it tvas the legal grand jury forthe term.

The issuance of the venire facias for the second grand jury was illegal in this: that it was issued whilst the first was recognized as the legal grand jury, and before any proceedings had been taken to set it aside.

The grand jury by which the bill was found and returned not being a legal grand jury, there was no error in quashing the indictment, and the same is affirmed.

Judgment affirmed.  