Simmons

Appellant was indicted by the grand jury of Sonoma county for the crime of incest. The indictment was set *2 aside upon defendant’s motion upon the ground that one of the grand jurors was incompetent, in that he had not been assessed on the last assessment-roll of said county. Thereupon the court resubmitted the case to the same grand jury, but directed Mr. Eamage, the incompetent juror, not to be present or participate in the examination of the case. This instruction was obeyed, and the grand jury found and returned a new indictment for the same offense. Defendant thereupon objected to the panel, and moved to set aside the new indictment upon the ground that the grand jury was illegal and not impaneled in the manner required by law, in that there were only eighteen legal and competent grandl jurors, Eamage being incompetent. This motion was denied, and defendant excepted. A trial was had and the defendant was found guilty and sentenced to imprisonment for the term of ten years. This appeal is from the order denying said motion, and also from an order denying his motion for a new trial based upon the same grounds, and also from the judgment.

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