#### Fairbanks v. State.

Opinion delivered October 2, 1922.

1. Criminal, law — motion to quash indictment — conclusiveness op finding. — Where, on motion .to quash the indictment on the ground o-f collusion between the prosecuting attorney, clerk and sheriff to omit calling the names of two grand jurors and substitute in their place bystanders suggested by the prosecuting attorney, the evidence was conflicting, the finding of the trial court is conclusive on appeal.

*492. Grand jury — summoning bystanders. — The court was not bound to exhaust its process against grand jurors before directing the sheriff to substitute bystanders to complete • the grand jury list.

Appeal from Clay Circuit Court, Eastern District; R. E. L. Johnson, Judge;

affirmed.

W. E. Spence, for appellant.

J. S. Utley, Attorney Gfeneral, and Elbert Qodioin, Assistant, for appellee.

McCulloch, E. J.

There were two indictments against appellant, one in which he was charged with the offense of keeping in his possession an unregistered still, and the other in which he was charged with the offense of selling intoxicating liquors. The two cases were tried together with his consent, and a verdict' establishing his guilt was rendered on each charge. He filed a motion to quash each of the indictments on the ground that there was collusion between the prosecuting attorney, the clerk of the court and the sheriff, to surreptitiously drop the names of two of the alternates on the grand jury list and to cause to be summoned in their stead two other persons whose names were suggested by the prosecuting attorney, and who were summoned by the sheriff and placed on the grand jury.

The court overruled the motion to quash, and this feature of the case is the only ground on which a reversal of the two judgments is sought.

The issue of fact presented in the motion was heard by the court upon conflicting oral testimony, and the finding of the court is therefore conclusive on this appeal.

Appellant introduced testimony tending to show that the clerk did not -call two of the names on the alternate list of grand jurors, that one of the persons named was in the court room at the time, and that when it appeared to the court that there were two of the alternates absent the sheriff was directed to summon two more for jury ■ service, that he summoned two men whose names were handed him by the clerk, and that they were the *50names that had been previously suggested by the prosecuting attorney.

There was evidence tending to prove, however, that the clerk called the names of the two omitted veniremen, and that when they failed to respond two others were regularly summoned in their stead. In other words, there was evidence tending to show that the charges made in the motion to quash the indictments were unfounded.

The court record of the formation of the grand jury recites that the two names omitted were called, that the men failed to answer, and that the sheriff, under the direction of the court, summoned two bystanders, who were accepted by the court, and that the jury was thus regularly impaneled. The record does not recite that the two absent jurors were excused by the court, or that process was ordered for them, but that was not essential to a substitution of bystanders summoned by the sheriff under direction of the court. The court was not bound to exhaust its process against the absent jurors before completing the list of the grand jury.

Affirmed.