
    criminal law — jury.
    [Franklin (2nd) Circuit Court,
    February 15, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    George T. Bartow v. State.
    Right of Accused to Jury Selected Under Law in Force When Prosecution Commenced.
    It is a violation oí the rights and liberty of a person accused of crime to place him on trial, against his objection, before a jury impaneled under an amenda-tory statute which was not in existence at the time of the commission of the alleged crime or at the commencement of the prosecution against him in the police court, when it appears that the police court bound him over to the grand jury which returned an indictment against him before the repeal of the old law and that he was held in the custody of the court under such indict'ment up to the time of trial. Entering a nolle prosequi to the indictment returned while the old law was in force and returning a new one -after its repeal, but without discharging the accused under the former indictment, will not remedy the situation.
    Samuel Hambleton, for plaintiff in error.
    E. L. Taylor, Jr., and A. T. Seymour, for defendant in error.
   SULLIVAN, J.

The plaintiff in error was indicted for embezzlement April 23, 1902. October 22, 1902, the grand jury returned another indictment for the same offense. January 3, 1903, the first indictment was nollied, and plaintiff was put upon trial in the court below on second indictment March 9, 1903. He was found'guilty as charged in the indictment. A motion for new trial was filed, which was overruled and he was sentenced* to the penitentiary for the period of one year.

On the day set for trial (March 9, 1903) the accused filed a challenge to the array on the ground that the crime with which he was charged was alleged to have been committed on February 19, 1902, and that on February —, 1902, prosecution for the offense was commenced against him in police court of the city of Columbus, and .on March ;1, 1902, he was bound over to appear before the grand jury, and that he had ever since the date above named been in the custody of the court.

That on September 30, 1902, the jury law that was in force when said alleged crime was committed was repealed by an act of the general assembly and an amended jury law was enacted for the appointment of a jury commission and the selection of jurors, and repealed the former jury law that existed at the time said alleged crime was committed.

That the grand jury that was drawn and impaneled returned the indictment in the case; and the petit jury selected and called to try the accused were each so selected, drawn and called under the act of September 30, 1902, in violation of the rights and liberty of the accused.. The facts stated in this motion were conceded to be true, except as to the rights and liberty of the accused being violated thereby.

The motion was overruled, and the accused put upon trial, to which action of the court the accused at the time excepted, and his exception was entered upon the record. The overruling of this motion is alleged as one of the grounds of error in the petition in error and also set forth in the motion for a new trial. The court erred in overruling this motion, and the accused was prejudiced thereby. Bach v. State, 38 Ohio St. 664.

There are no other errors prejudicial to plaintiff in error apparent upon the record and for the error alone stated it follows that the judgment must be reversed and cause remanded to be proceeded with according to law.  