
    Case 29 —MOTION
    November 21.
    Commonwealth v. Simons.
    APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.
    1. Criminal Law — Dismissal of Indictment — Appeals.—An order by the circuit court setting aside an indictment on the ground that others, not grand jurors, were present before the grand jury when they acted upon the indictment, under the provisions of section 281 of the Criminal Code, is not subject to exception, and can not, therefone, be revised by this court on appeal.
    STONE & STJDDUTH and O’NEAL & PRYOR for appellant.
    I. The provision of section 281 of the Criminal Code that a decision upon a motion to set aside an indictment shall not be subject to exceptions, relates to an exception by the defendant; this court has repeatedly entertained jurisdiction of such appeals by the (Commonwealth and upheld the same. (Corn. v. Slieggs, 3 Bush, 19; Com. v. English, 6 Bush, 431; Com. v. Rudd, 3 Ky. L. R., 328; Com. v. Smith, 10 Bush, 476; Com. v. Pritchett, 11 Bush, 277; Com. v. Wright, 79 Ky., 22; Com. v. Minor, 89 Ky., 555; Com. v. L. & N. R. Co., 17 Ky. L. R., 562.)
    J. H. EATON OF COUNSEL ON SAME SIDE.
    ZACH PHELPS and KOHN, BAIRD & SPINDLE for appellee.
    1. The appeal should be dismissed .because it is provided by section 281 of the Criminal Code that the decisions of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for a new trial shall not be subject to the exception.”
    2. The decision of the lower court not being subject to exception the filing of the bill of exceptions herein was a mere nullity. (Kennedy v. Com., 14 Bush, 340; Parris v. Com., 14 Bush, 368; Redman v. Com., 82 Ky., 333; P. & E. Ry. Co. v. Com., 80 Ky., 147.)
    3. Where employed attorneys for the prosecution, go into the grand jury room and are sworn as witnesses, and testify to no facts, but only to what they believed to he the law of the case, and sent into the grand jury room slips of paper containing extracts of law which they deemed applicable to the case under consideration, an indictment returned by the grand jury should be set aside. (Thompson & Merriman on Juries; Bishop’s Crim. Procedure, sec. 633; United States v. Farrington, 2 Crim. Law Magazine, 525; Welch v. State, 8 Southern Rep., 673; Wilson v. State, 13 Sou. Rep., 225; Duerr v. State, 53 Miss., 427; Rothehild v. State, 7 Tex. App., 537; State v. Addison, 2. S. C., 356.)
   CHIEF JUSTICE PRYOR

demyered the opinion op the court.

In this case there was a motion to set aside the indictment, the main ground being that others not grand jurors were present before the grand jury when they acted upon the indictment. The motion was sustained by the court below, and the Commonwealth has appealed, the motion here is to dismiss the appeal, as this court is without jurisdiction.

There are three grounds for setting aside an indictment mentioned in section 158 of the Code, and one of them is that contained in the motion made in this case. Section 281 of the Criminal Code provides: “The decision of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for a new trial, shall not be subject to exception.”

This provision applies as well to the Commonwealth as to the party charged-with an offense. In such a state of case the sufficiency of the indictment is not involved, and the sole question is to be determined by the trial judge upon such proof as may be heard, and his disposition of the motion is not the subject of revision by this court. It is not the subject of an exception by either side, the law placing the entire matter within the discretion of the trial judge, and therefore this court has not looked into the merits of the motion, and no doubt the trial judge is better able, with the testimony before him, than this court would be, to determine whether or not an indictment had been improperly procured. We must administer .the law as we find it, and that an appeal will not lie is manifest.

Appeal dismissed.  