Conviction was for assault with intent to commit robbery, punishment being fixed at two years confinement in the penitentiary.
Motion in arrest of judgment was filed raising the question of an invalid indictment for the reason that same was returned at the December term, 1921 by a grand jury selected by jury commissioners appointed at that term, in violation of Article 339 Code Criminal Procedure which provides that if for any cause a grand jury is not selected by jury commissioners at the preceding term the sheriff shall be directed to summon them. The precise question was before us in Russell v. State, No. 6923, relative to an indictment returned by this same grand jury. We there held the indictment should have been quashed. Our reasons are fully set out in the opinion in that case. The motion in arrest of judgment should have been sustained. *Page 296
The judgment is reversed, and the prosecution under the present indictment is ordered dismissed.
Dismissed.