The People vs. Wintermute.
fendant and at least three of his counsel were present, and so continued during the whole proceedings of that day. Four of the fifteen in the box, for satisfactory reasons publicly shown, and entered of record, were excused from further attendance, Mr. Delamater remaining. There being then only eleven persons in the box, the court, in pursuance of law, ordered the sheriff to summons, not from the by-standers, but from the body of the county, five good and lawful men, having the qualifications of jurors, to complete the panel, etc. To this special venire, the sheriff made due return, and the five persons thus summoned took seats in the box, making the required number.
The record next shows that the said sixteen persons were then duly sworn to make true answers touching their qualifications to sit as grand jurors.
Thereupon a controversy having arisen as to the competency of Matthias Bagstadt, the counsel for the defendant drew up and presented to the court, the following paper, which was duly filed:
" Now at this time, sixteen persons having appeared and " taken seats in the box as grand jurors of the county of " Yankton, comes the defendant, P. P. Wintermute, a person " held to answer to any indictment that may be found against " him at this term of the court, in person and by his counsel, " and also comes the District Attorney for said Yankton " county, and one Matthias Bagstadt having been selected, " drawn, and summoned upon the regular panel as a grand " juror, being sworn on his voir dire answers as to his quali- " fications, that," etc. * * * " Upon such answer the Dis- " trict Attorney asks that said Bagstadt be excluded from " serving as such grand juror, alleging that he is not compe- " tent to serve; to which said Wintermute objects, and insists " said Bagstadt is a competent grand juror of this court." The court excluded Mr. Bagstadt, to which ruling the defendant excepted, the District Attorney declaring, however, that no such exception would lie.
The next step in the proceedings was an order to summon one good and lawful person as aforesaid, to supply the vacant
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