Lensen

The defendant is charged by indictment with having sold alcoholic liquors in violation of the statute. On his arraignment, he filed a motion to set aside the indictment upon the ground that the grand jury that found and presented the indictment was not a legal grand jury, in that it was composed of only eleven men; that is to say, it was composed of eleven men and eight women, and that twelve men did not concur in finding the indictment.

He was tried by a jury and convicted, filed his motion for a new trial, which was overruled, and was sentenced to pay a fine of four hundred dollars. It is now specified as error: (1) That the court overruled defendant’s motion to set aside the indictment; (2) that there was no evidence presented by the prosecution to the jury that the alleged beer which the defendant was charged with selling contained in excess of one per cent of alcohol.

We do not think it necessary to notice other than the first assignment of error. At the time this indictment was found, section 192 of the Code of Civil Procedure read as follows: “A grand jury is a body of men, nineteen in number, returned in pursuance of law, from the citizens of a county, or city and…