January 26, 1906. The opinion of the Court was delivered by This is an appeal from an order sustaining the challenge to the array of petit jurors on the *Page 202 ground that the auditor, who is ex officio one of the jury commissioners, and who took part in drawing said jury, was related by consanguinity within the fifth degree to the person for the killing of whom the defendants were indicted.
In sustaining the motion, his Honor, the presiding Judge, said: "I am constrained to the opinion that the laws and the decisions of our Supreme Court leave me no discretion where the jury commissioners, or any of them, is related to either the deceased or defendant within the sixth degree."
The ruling was erroneous, as will be seen by the reference to the case of State v. Perry, in which the opinion has just been filed.
As the defendants, however, cannot now be tried by jurors drawn from said array, the appeal presents merely an abstract question, and the appeal is dismissed.