the two. In principle the language is prac tically the same as that of section 5 of the present law, which contains this provision: "If jurors shall not be drawn and summoned as herein provided and a jury is required, the court shall nevertheless have power to cause a jury to be summoned by an open venire as heretofore practiced." In Wilson v. People, 3 Colo. 325, in speaking of the act of 1874 and the grand jury, in the case which found an indictment against Wilson, it is said: "The court may for some sufficient reason, by virtue of its common-law power, which is recognized by the statute, have ordered a special venire, under which the sheriff may have summoned the identical panel that found the indictment." The common-law power of the court to issue an open venire in the act of 1874, as thus recognized, is the same to all intents and purposes as that in the act of 1891. The statute provides that: "No grand jury shall be summoned unless specially ordered by the court." It provides also that, when a grand jury is required, the first 12 names drawn from the box shall constitute the grand jury. The names must be drawn from the box 30 days before the term of court begins and 30 days before the order for a grand jury could be made, unless the court during one term should order a grand jury for the next. If the statute is to be strictly construed and strictly followed, and is exclusive of the ancient method of securing grand jurors, as seems to be contended by plaintiffs in error, it would be impossible to obtain a legal grand jury except when the necessity for one was apparent at least 30 days before the commencement of the term, and the court should still be in session in the preceding term. One of the the very things complained of in People ex rel. Bonfils v. District Court, 29 Colo. 83, 66 Pac. 1068, was that the court attempted to impanel a grand jury from persons whose names remained in the jury box after the petit jury had been drawn therefrom. If the doctrine contended for by plaintiffs in error is to obtain, the statute which authorized the court to call a grand jury will be inoperative except in very rare instances. Inasmuch as the courts of this state, when the matter has been presented to them, have, so far as necessary, determined that the statutory method of obtaining juries, either grand or petit, was not exclusive of the common-law procedure, and to hold otherwise would practically prohibit the obtaining of a grand jury, the trial court committed no error in having overruled the motion of plaintiffs in error to quash the indictment, or in overruling the other motions interposed by plaintiffs in error intended to reach the same end.

Defendants moved to quash the third, fourth, fifth, and sixth counts of the indictment upon which they were found guilty. The motion was overruled, and the action of the court is assigned as error. The reason

argued in the brief as to why the motion should have been sustained is that these counts, and each of them, failed to state facts sufficient to constitute a crime. The third count, after alleging the conspiracy of defendants and seven others in apt terms, alleges that the purpose of the conspiracy was to cause ere or more of them to be elected president and vice president of the Denver Savings Bank, and, being such officers and agents of said bank, certain moneys, bullion, notes, bills, bonds, stocks, securities, and personal property belonging to and in the possession of the bank of the value of $1,712,587.13, unlawfully, feloniously, and fraudulently convert to their own use. The fourth count is the same, except that it alleges that the conspiracy was for the purpose of unlawfully, feloniously, and fraudulently converting to their own use $1,712,587.13 in money of the property of the bank. The fifth count, after alleging the conspiracy. alleges that they co-operated with each other in the commission by them or some one or more of them of an unlawful act, to wit, a felony, which said felony was that of feloniously, fraudulently, knowingly, and designedly, by means of certain false and fraudulent pretenses there and thereafter to be used, made, and availed of by the alleged conspirators (naming them), or some one or more of them, obtaining from the Denver Savings Bank divers sums of money, choses in action, and divers goods, wares, chattels, and effects or other things in amounts and quantities of a greater value than $20, with intent knowingly, designedly, fraudulently, and feloniously to cheat and defraud the said Denver Savings Bank.

The sixth count also charges a conspiracy to obtain the property of the Denver Savings Bank by false pretenses, but in that count the means by which the object and purpose of the conspiracy was to be brought about is fully set forth. It is too voluminous to be inserted in this opinion. The substance of it is, however, that there should be organized, acquired, and controlled by the alleged conspirators certain banking institutions, mercantile, industrial, railway, and other corporations in various states and territories, namely, Texas, Missouri, Oklahoma, Indian Territory, Colorado, Massachusetts, and Kansas. The indictment then sets forth the names of the various corporations, and that the stock of these corporations should be issued to some one or more of the conspirators or their agents upon false, fictitious, and worthless securities as paid-up stock, while, as a matter of fact, the stock and the certificates therefor were to be of no value whatsoever and were not fully paid; that bonds. bills, drafts, checks, certificates of deposit, promissory notes, and other evidences of indebtedness should be executed by the alleged conspirators or by some one or more of them, and by the banking and other corporations therein named, that when so executed would

be unlawfully acquired by the alleged conspirators and by the banking and other corporations or some one or more of them; that it should be falsely, knowingly, designedly, and feloniously pretended by the alleged conspirators or by some one or more of them and by said banks, mercantile, and other corporations, or some one or more of them, that the same had been acquired in the ordinary course of business by loaning to the persons so executing, indorsing, and negotiating the evidences of indebtedness, while, as a matter of fact, they had not been and were not to be acquired in the ordinary course of business, and no moneys had been or were to be loaned upon the same; that the alleged conspirators, or some of them, or the banks or corporations, or some of them, were to sell the securities and the shares and certificates of stock to the Denver Savings Bank and obtain from it money, choses in action, and other property thereupon, by falsely and fraudulently pretending and representing to the Denver Savings Bank that the securities and shares of stock were valuable and worth the various amounts named in the securities, and that the stock certificates and shares were full paid and of great value, and that the amounts named in the securities and for which the same were drawn had been truly and in good faith and in due course of business loaned to the persons by whom said securities were signed, all of which matters and things and representations were then and there known by the alleged conspirators and by the several banking institutions and corporations to be false, fraudulent, and untrue; that the alleged conspirators were to have one or more of their number elected as officers and directors of the Denver Savings Bank; and that they, having acquired control and charge of the assets of the said bank, as part of the conspiracy, should pass favorably upon these securities and shares of stock as good and sufficient and valuable and available security for the moneys and other things belonging to and in the possession of the Denver Savings Bank, and that they would procure the Denver Savings Bank to make loans of and part with money, choses in action, and other valuable things upon the strength and faith of said worthless and fictitious securities, when in truth and in fact the persons to be elected as officers and directors of the Denver Savings Bank then and there well knew that the securities were false, fictitious, and worthless-and all of which the alleged conspirators knew. It was also alleged in the indictment that some of these persons would feloniously represent to the Denver Savings Bank that a certain banking institution, namely, the Cherokee State Bank of Enid, had been organized and was existing and doing business, and that $50,000 should be loaned to the Cherokee State Bank of Enid and other banks upon the shares of stock and certificates of stock of the Cherokee

State Bank of Enid, while, as a matter of fact, the Cherokee State Bank of Enid had not been, nor was it to be, organized, nor was it in existence, or to be in existence, at the time the false representations were to be made to the Denver Savings Bank; and that, by means of said false representations to be made to the Denver Savings Bank, the persons named in the indictment, or some of them, would procure from the Denver Savings Bank the sum of $50,000; and that it was further to be falsely represented to the Denver Savings Bank that some one or more of the persons named in the indictment or some of the banks had a large account of deposit in some one or more of the banks or banking institutions mentioned in the indictment as being controlled by the alleged conspirators, and had actually the cash and moneys on deposit therein in the name and to the credit and subject to the check of such persons; and that such persons should and would draw a check or draft upon said pretended account, which check was to be falsely and fraudulently represented to be paid in the ordinary course of business; and that thereupon the person or persons would cash the check and obtain the money thereon from the Denver Savings Bank upon such false and fraudulent representations, whereas, in truth and fact, the representations of each and all were false and fraudulent, and the person or persons so drawing such check had and were to have no money on deposit in any of said banks or elsewhere wherewith to pay for such check or draft to be cashed with the moneys of the Denver Savings Bank.

The specific objection urged against the third and fourth counts is that the property which it is alleged the conspirators intended to embezzle was not sufficiently described.. Unless the crime which it is alleged the defendants conspired to commit is named, the indictment must contain every element necessary to constitute that offense as fully as if the indictment was for its perpetration. Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111. The third count of the indictment alleges that the property to be embezzled was "certain moneys, bullion, notes, bills, bonds, stocks, securities, and personal property belonging to and in the possession of said bank, of the value of $1,712,587.13." It is contended by the defendants that this was not a sufficient description of the property, because, as they say, in an action charging embezzlement, the property alleged to be embezzled must be described with such certainty as to identify it and give defendants full and fair information as to the charge and be a bar against any other prosecution for the same offense. That the property alleged to be embezzled must be described with the same certainty that would be required in an indictment for larceny. That the third count of the indictment does not specifically charge the defendants with embezzlement; that is,

that it does not name the crime of embezzlement, but attempts to set forth the facts constituting that crime, and therefore the embezzlement must be charged with the same particularity that would be necessary if the indictment was for that offense, instead of for the conspiracy. Inasmuch as the defendants were found guilty upon four counts of the indictment, and were sentenced to serve a term in the penitentiary for the same period on each count, the sentences to be concurrent, if one or more of the counts of the indictment were found to be bad, and one or more found to be good, it would be of no benefit to the defendants to have the bad ones declared so, for they would still have to serve the same number of years in the penitentiary that they would had the faulty indictment been good. In the case of Quinn et al. v. People, 32 Colo. 135, 75 Pac. 396, it appears that the defendant was indicted for stealing a heifer from one Faris, and also the larceny of a heifer from one Brown. The cases were consolidated for trial, and the defendant was convicted in both. It was contended that the evidence was not sufficient to warrant the conviction in reference to the Faris helfer. This court said: "We shall not consider the objection concerning the sufficiency of the evidence in the cases in which the defendants were charged with the conversion of the Faris heifer, because the record shows that the defendants were sentenced to a term in the penitentiary of not less than eighteen months nor more than two years for the larceny of the Brown heifer, and that the sentence for the larceny of the Faris heifer runs concurrently with it." It appears to be the rule that where there are two or more counts in the indictment, and a general verdict of guilty is returned, if either of the counts are good it will support the verdict. State v. Brady, 107 N. C. 822, 12 S. E. 325; State v. Morrison, 24 N. C. 9; State v. Toole, 106 N. C. 736, 11 S. E. 168.

The fourth count in the indictment charges that the property to be wrongfully appropriated to the use of the conspirators was money of the same value as alleged in the third count. In this state that is a sufficient description, without specifying any particular coin or bank note. Section 1453, Mills' Ann. St. Section 1432, Mills' Ann. St., provides: "Every indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of this Code, or so plainly that the nature of the offense may be easily understood by the jury." This count of the indictment not only describes the offense in the words of the statute, but also plainly enough to be readily understood by a jury, and is sufficient. 4 Enc. Pl. & Pr. 723; Cole v. People, 84 Ill. 216; McCutcheon v. People, 69 Ill. 601; Elkin v. People, 28 N. Y. 177; State v. Grant, 86 Iowa, 217, 53 N. W. 120.

The objection made to the fifth count is that the property which it is alleged the conspira

tors colluded to obtain from the Denver Sav. ings Bank by false pretenses was not sufficiently described. This objection also goes to the sixth count. It is also urged that the fifth count is insufficient because the means by which the object of the conspiracy was to be accomplished were not described. None of these objections are good. The fifth count In the indictment charges a conspiracy to commit a substantive offense, namely, obtaining property by false pretenses. A "conspiracy" is a criminal act, and it is unnecessary to aver the means by which the conspiracy was to be carried out. State v. Noyes, 25 Vt. 415; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; 2 Bishop's New. Crim. Proc. § 207, c. 2, and cases there cited. The defendants rely very much upon the case of Commonwealth v. Ward, 92 Ky. 159, 17 S. W. 283, wherein it is said that, in an Indictment charging a conspiracy to commit a crime: "If the offense be stated in generic terms, it is not sufficient to charge it in like terms; but the indictment must descend to particulars. The offense must be set forth with such clearness and certainty as to apprise the accused of the crime charged to him, and to enable the court to say, upon an inspection of the indictment, whether, if the conspiracy were carried out, he would be guilty of an offense. Every ingredient composing it must be charged." But the statute of Kentucky provides that an Indictment must be direct and certain as to "the particular circumstances of the offense charged if they be necessary to constitute a complete offense," and also that the indictment must contain "a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case." Sections 124, 122, Cr. Code Prac. Ky. Our statute provides that it is sufficient if the offense be charged in the words of the statute. State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534, stated by the editors of the American Decisions as being entitled to be regarded as one of the leading cases on the subject of conspiracy (9 Am. Dec. 571), determines that an indictment for a bare conspiracy to cheat or defraud a third person will lle even though the means of effecting the conspiracy should not be determined upon at the time; that in a prosecution for conspiracy it is sufficient to state in the indictment the conspiracy and its object. The means by which it was intended to be effected need not be stated. In Moore v. People, 31 Colo. 336, 73 Pac.30. it was said by this court: "It is sufficient to set forth a conspiracy according to the fact. The gist of the offense is the unlawful combination and agreement; and it has been held to be unnecessary to set forth in the indictment the means agreed upon in a conspiracy to obtain goods by false pretenses. State v.

Crowley and Others, 41 Wis. 271." Blum v. State, 94 Md. 375, 51 Atl. 26, 56 L. R. A. 322. In State v. Brady, 107 N. C. 822, 12 S. E. 325, it is held that, in an indictment for conspiracy to cheat and defraud, the means to be used need not be charged. The court said that, while "there have been decisions to the contrary holding that the means must be charged," such is not the weight of authority. "The leading authorities to that effect are to be found in the United States and New York courts, in which jurisdictions the law on this subject has been modified by statute." See, also, Thomas v. People, 113 Ill. 531. In People v. Arnold, 46 Mich. 268, 9 N. W. 406, in a learned opinion by Cooley, J., it is said: An information for conspiracy need not allege the means to be employed, unless they constitute the only element of criminality. * An information for cheating and defrauding by false pretenses must specify the pretenses used; but an information for conspiracy thereto need not allege the means, and the offense may be complete, even though the pretenses or the victims are not agreed on." To this proposition he cites a great mass of authorities, some from English courts, others from Massachusetts, Pennsylvania, Maine, New Hampshire, South Carolina, Iowa, Michigan, and Wisconsin.

There is nothing in the contention of the defendants that the property which it is alleged they sought to obtain by false pretenses is insufficiently described. It is described in the fifth and sixth counts of the indictment as "moneys, choses in action, goods, wares, chattels, effects, and other valuable things." "Where an indictment alleges a conspiracy to defraud, it is not necessary to set forth and particularly describe the rights, property, goods or chattels of which defendants conspired to defraud plaintiff." 8 Cyc. 665; Commonwealth v. Goldsmith, 12 Phila. (Pa.) 632. Under the great weight of authority, both in this country and England, the fifth count of the indictment is good, and the sixth count, setting forth the means by which the objects of the conspiracy were to be carried out at great length and particularity, is unquestionably good under all of the authorities. So that the court committed no error in overruling the motion to quash the last three counts of the indictment. We make no findings as to the third count, because, as hereinbefore stated, we do not deem it necessary at this time or important in this action.

Upon the overruling of the motion to quash the various counts of the indictment, defendants moved the court to require the district attorney to furnish a bill of particulars. This motion was denied, and the ruling of the court was assigned as error. The matter of granting or refusing a bill of particulars lies within the sound discretion of the trial court, and, where the exercise of such discretion has not been abused, it will not be reviewed

by the appellate court. 8 Cyc. 671, note 35; State v. Bacon, 41 Vt. 526, 98 Am. Dec. 616; Com. v. Zuern, 16 Pa. Super. Ct. 588; State v. Brady, supra. Some of the authorities go to the extent of determining that whether a bill of particulars or a specification of the case should be required is exclusively within the discretion of the presiding judge. Wharton on Crim. Law, § 291; 1 Bishop on Crim. Proc. § 643; Com. v. Giles, 1 Gray (Mass.) 466; Com. v. Wood, 4 Gray (Mass.) 11. Plaintiffs in error rely upon what was said by this court in Hamilton v. People, 24 Colo. 301, 51 Pac. 425. We there said: "Moreover, if the defendant desired a bill of particulars, he should have demanded the same, and, if refused, might have had his application therefor reviewed by reserving an exception to the ruling of the court and assigning errors thereon. This was not done." That case does not hold, and it was not intended to hold, that motions of this character are not addressed to the sound discretion of the trial court, and could only be reviewed where the record disclosed an abuse of such discretion. In this case the sixth count of the indictment is drawn with such attention to detail, and the facts and circumstances by which the object and purpose of the conspiracy was intended to be carried out are so fully set forth, that we cannot say the discretion of the court was abused. It would be difficult to determine how a bill of particulars could be more specific than are the allegations of this count of the indictment. There was no error committed by the court in refusing the application.

Section 1460, Mills' Ann. St., provides: "Every person charged with murder or other felonious crime shall be furnished previous to his arraignment with a copy of the indictment and a list of the jurors and witnesses." The defendants in this matter were arraigned on November 18, 1905. They were not served with the list of jurors at that time. It appears that the regular panel, consisting of those who had been drawn from the box, served, and appeared, had been depleted, until there were only 12 left. Upon the 29th of November the defendants were served with a list of those 12 men. Afterwards, and upon December 2d, a special venire of 30 men was returned into court, and on December 4th a list of the jurors in that special panel was given to the defendants. After the defendants had been served with the list of 12 jurors, they moved the court to continue the trial of the case until the next term, for the reason that between the 29th day of November and the date set for the trial, namely, the 4th day of December, they did not have an opportunity to secure the requisite information concerning the 12 jurors. This motion was overruled. Upon the service of the list of jurors summoned upon special venire, defendants moved to quash the special venire, and challenged the array, for the reason that the court was without the power to is

sue an open venire; there still being a large number of names in the jury box which had been selected by the county commissioners, and which had not been drawn. This motion was overruled. The defendants then asked for an adjournment "until the day after tomorrow at 10 o'clock," and the court refused that request, and stated that he would allow them "until to-morrow at 10 o'clock" in which to make an examination of the jury list. The defendants declined to accept this, and the action of the court in these several particulars is assigned as error. In the course of the proceedings the court made the remark that the jurors who were summoned upon the special venire were well-known citizens of Denver, having lived there for a long time, and that they were not strangers to counsel for defendants, that they were well known in the community, and that they could be investigated in a short time. Counsel for defendants did not deny that they were acquainted with the jurors, neither has there been any showing that the defendants failed to secure a fair and impartial jury, nor that they discovered anything in relation to the character of the jurors subsequent to the time when they were impaneled and sworn, which demonstrated that they were unsuitable to serve as jurors on that particular case. There is nothing to show that the defendants were prejudiced in the least by the manner of securing this jury. We have already seen, in speaking of the grand jury which returned the indictment in this action, that, where the jurors have not been drawn and summoned according to statute, it is within the power of the court to order the issuance of a special venire. The same rule applies in the case of petit jurors that obtains in the case of grand jurors.

The defendants strenuously urged that the section of the statute which provides that they should be served with a list of the jurors previous to arraignment is mandatory, and that in case of a violation of its provisions the verdict must be set aside. They cite a number of authorities which they claim support them in this contention. None of the authorities cited, however, are in point, for the reason that they all appear to be based upon statutes which provide that the list of jurors shall be served upon the defendants a given number of days previous to the trial; the number varying in the different states. The doctrine appears to be in those states that if the accused is not furnished with the list of jurors for the period before the trial which the statutes demand, and the matter is called to the attention of the trial court, the case must be postponed until the expiration of such period. This is entirely different from the provisions of our statute, which provide that the list of jurors shall be furnished the accused previous to arraignment, and, under our statute, the rule seems to be that, if the defendants have not been served with the list of jurors, the judgment will not be

reversed on that account, unless the accused are able to show that they were prejudiced on account of the failure to receive the list previous to arraignment. In the case of Minich v. People, 8 Colo. 447, 9 Pac. 9, it was said: "It would seem that, since in this case the list of jurors was furnished prior to trial, and the defendant was thus given an opportunity to secure the requisite information concerning them, the reason of the law was complied with. If it appeared that the defendant was injured or put to a disadvantage by the failure to furnish this list prior to arraignment, particularly if he entered a timely protest, his conviction ought not to stand; but there is nothing in the record before us from which the slightest prejudice to his rights on this account can be inferred. Commenting upon this subject, the Supreme Court of Illinois say that, while it is the duty or courts to prisoners, ‘among other things, to notify them in due time as to what men constitute the panel out of which the jurors for their trial should be called, *

it is

not, however, every little inaccuracy which may occur in this regard for which a tria. should be set aside.' Goodhue v. State, 94 Ill. 37. And they hold, under just such a statute as ours, that unless the accused has been put to a disadvantage from the irregularity, his conviction ought not to be interfered with.'" See, also, North v. People, 139 Ill. 81, 28 N. E. 966. While the defendants did not ask an unreasonable length of time in which to investigate the jurors, still, in the absence of a statute, that is a matter largely within the discretion of the court, and if, as the court stated, the jurors were well-known men, with whom counsel for defendants were acquainted, we cannot say, in the absence of a showing, that the defendants were materially injured or prejudiced, or that the court abused its discretion in this behalf.

It appears that three jurors, namely, Morris, Guy, and Smith, were creditors of the Denver Savings Bank. They were challenged by the defendants for cause and for favor, the challenge was overruled, and the action of the court in that respect is assigned as error. Morris testified that he was a depositor in the bank, but that he drew out the larger portion of his deposit three days before the bank failed; that there was a run on the bank three days after he drew out the greater portion of his deposit, but he paid no attention to it; that he had no opinion as to the guilt or innocence of the defendants; that he always had a high regard for everybody connected with the bank; that he did not know the defendants were connected with it; that, while he read some ac count of it in the papers, he paid no attention to it; that he had no bias or prejudice at all; that the amount of his money that was left in the bank did not bother him; and that he did not care for it. The only portion of the testimony of Juror Guy that is contained in the abstract is to the effect