
    Johnny Lawrence Kennebrew v. The State.
    No. 23125.
    Delivered June 20, 1945.
    The opinion states the case.
    
      Irwin & Irwin, of Dallas, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of the offense of burglary and his punishment was assessed at confinement in the penitentiary for a period of two years.

The only question presented for review relates to the court’s action in overruling appellant’s motion to quash the indictment in this case on the ground that the court excused one of the prospective grand jurors and directed the bailiff to summon one, P. A. Bailey, as a prospective grand juror to fill the place of the one who was excused. The evidence on the issue of whether the court directed the bailiff to summon Mr. Bailey or whether the bailiff summoned him on his own judgment and volition is very much in conflict. This issue the trial court, in the exercise of his judicial discretion, decided adversely to appellant, and his judgment in the matter is binding on this court, unless it clearly appears that he abused his discretion with respect thereto. We do not deem it necessary to enter upon an extended discussion of the question as the exact point regarding this same grand juror was before this court in the case of Anna Bell Turner v. State, No. 28,094, (decided April 4, 1945, but not yet reported), (Page 491 of this volume), and was thoroughly discussed in that case. For the reason therein stated, we overrule appellant’s contention.

From what we have said, it follows that the judgment of the trial court should be affirmed, and it is so ordered.

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.  