O’NIELL, J.
Appellant was convicted of the crime of embezzlement and sentenced to imprisonment in the state penitentiary. The record contains five bills of exception and an assignment of errors.
[3] Bill No. 1 was reserved to the overruling of the motion to quash the indictment. [561]*561The complaint was that the judge had, without good reason, excused from service on the grand jury two of the twenty men whose names were drawn by the jury commission. The record contains an admission that the names of the two grand jurors who were excused by the judge were drawn for service during the impaneling of the grand jury, and that the two men would therefore have served on the grand jury if they had not been already excused from service. It appears that the members of the local bar consented to the judge’s excusing the two men from service on the grand jury; but it also appears that the defendant in this case was not represented by any member of the local bar. The reason given for excusing one of the men from service on the grand jury was that his mother had recently died, and that his father, with whom he lived, was in very bad health. The reason given for excusing the other man was that he was a saw filer in a large sawmill, the operation of which would have been suspended if .the man had been drawn for service on the grand jury. It is conceded that neither of the causes for which the judge excused the men from service on the grand jury would have been cause for disqualification or for claiming exemption from service. But the statute on the subject of impaneling or drawing grand juries does not forbid the district judge to excuse a man from service on the grand jury for a cause which would not disqualify him or give him the absolute right to claim exemption. Section 1 of Act No. 135 of 1S9S, p. 216, declares that the judge shall have discretion to decide upon the competency of jurors in particular cases, and to declare the person incompetent for jury Service in any particular case when, from physical infirmity or relationship or inability to understand the English language, or for any other cause, such person may be, in the opinion of the judge, incompetent. It is true that expression appears in the paragraph referring particularly to the qualifications of petit jurors; but the concluding sentence of the .paragraph shows plainly that the provision also applies to the question of the competency of a person to serve as a member of a grand jury.; for the concluding sentence declares that, in addition to the foregoing qualifications, a grand juror shall have the further qualifications of being able to read and write the English language and be a person of well-known good character and standing in the community. Section 2 of the statute enumerates the causes for which a person may claim exemption from service on either a grand or petit jury. But it does not follow, merely because the statute fixes the disqualifications and enumerates the causes for which a person may claim exemption from service on a grand or petit jury, that therefore the judge of the district court cannot excuse a person for any cause that would neither disqualify nor exempt him from jury service.
Counsel for appellant cite and rely upon the ruling in State v. McGarrity, 140 La. 436, 73 South. 259, and the ruling in State v. Smith, 145 La. 1091, 83 South. 264, in support of their motion to quash the indictment in this case. The decision in the McGarrity Case is not appropriate. In that case, after the court had appointed a foreman of the grand jury and the sheriff had drawn one of the eleven names to be drawn to complete the grand jury, the judge, without good reason, ordered the sheriff to return the name to the envelope and draw another. The result was that the man whose name was first drawn for service did not serve on the grand jury. In that way the court substituted another person for the one whose name had been regularly drawn for service.
In the case of State v. Smith, after the foreman had been appointed and the eleven other grand jurors had been impaneled, the [563]*563judge, of Ms own motion and without good cause, discharged six members of the grand jury and had six other names drawn from only seven names that remained in the box. None of the six grand jurors who were discharged had asked to be excused from service.
Of course, a district judge is not permitted to select a grand jury by the process of elimination. He has authority to appoint the foreman, but the eleven other grand jurors must be drawn by the sheriff, without discrimination, from the number of names remaining in the envelope. It might be deemed wrong, therefore, for the judge to excuse from service, whether with or without good cause, so many of the twenty persons whose names were selected by the jury commission as to eliminate the element of chance and make the impaneling of the grand jury a matter of selection or choice of the district judge. But that is not the case before us. There is no pretense on the part of appellant that there was any fraud or wrongdoing in the excusing of the two men from service on the grand jury; nor is it pretended that defendant was in any way injured or prejudiced by the judge’s having excused the two men from service. A person accused of crime has the right to insist that no incompetent person shall be a member of the grand jury that investigates Ms case; but he has no right to have any particular one of the competent persons drawn for service. Our conclusion is that the ruling on the motion to quash the indictment was correct.
[4] Bill of exceptions No. 2 was reserved to the overruling of defendant’s objection to certain evidence offered by the state to prove that false entries were made by defendant in the books of the bank of which he was cashier, on two occasions subsequent to the date of the alleged -embezzlement. The evidence showed that on' the day after the alleged offense defendant remitted $165.75 to another bank, and made an entry on the books of the bank of which he was cashier, showing that he had remitted $10,165.75. The evidence further showed that 18 days after the alleged offense defendant made a flat raise of $10,000 in the balance due to Ms bank by the other bank. In his instructions to the jury the judge restricted the evidence to the purpose for which it was offered by the state; that is, to show, as far as it might, that the defendant was covering up shortages in his accounts in the books of the bank of which he was cashier. It is' true, the evidence tended to show that defendant was covering up a shortage of $20,000; that is, a much larger amount than he was charged with having embezzled in this case. But it also appears that thkre were other indictments pending charging that defendant had embezzled other sums from the bank. The defense in this case was that, although defendant had caused to be remitted a cashier’s check in payment of a debt for which he had given his personal check, he had not had any intention of committing a crime or of defrauding the bank. The main question before the jury, therefore, was whether there was a criminal intent on the part of the defendant in the transaction for which he was indicted. The evidence tending to show that he subsequently undertook to cover up the shortage was relevant to the question at issue before the jury. As a general rule, in a prosecution for crime, proof that the defendant committed another and similar crime is not admissible for the purpose of showing a probability that he committed the crime for which he is on trial.
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O’NIELL, J.
Appellant was convicted of the crime of embezzlement and sentenced to imprisonment in the state penitentiary. The record contains five bills of exception and an assignment of errors.
[3] Bill No. 1 was reserved to the overruling of the motion to quash the indictment. [561]*561The complaint was that the judge had, without good reason, excused from service on the grand jury two of the twenty men whose names were drawn by the jury commission. The record contains an admission that the names of the two grand jurors who were excused by the judge were drawn for service during the impaneling of the grand jury, and that the two men would therefore have served on the grand jury if they had not been already excused from service. It appears that the members of the local bar consented to the judge’s excusing the two men from service on the grand jury; but it also appears that the defendant in this case was not represented by any member of the local bar. The reason given for excusing one of the men from service on the grand jury was that his mother had recently died, and that his father, with whom he lived, was in very bad health. The reason given for excusing the other man was that he was a saw filer in a large sawmill, the operation of which would have been suspended if .the man had been drawn for service on the grand jury. It is conceded that neither of the causes for which the judge excused the men from service on the grand jury would have been cause for disqualification or for claiming exemption from service. But the statute on the subject of impaneling or drawing grand juries does not forbid the district judge to excuse a man from service on the grand jury for a cause which would not disqualify him or give him the absolute right to claim exemption. Section 1 of Act No. 135 of 1S9S, p. 216, declares that the judge shall have discretion to decide upon the competency of jurors in particular cases, and to declare the person incompetent for jury Service in any particular case when, from physical infirmity or relationship or inability to understand the English language, or for any other cause, such person may be, in the opinion of the judge, incompetent. It is true that expression appears in the paragraph referring particularly to the qualifications of petit jurors; but the concluding sentence of the .paragraph shows plainly that the provision also applies to the question of the competency of a person to serve as a member of a grand jury.; for the concluding sentence declares that, in addition to the foregoing qualifications, a grand juror shall have the further qualifications of being able to read and write the English language and be a person of well-known good character and standing in the community. Section 2 of the statute enumerates the causes for which a person may claim exemption from service on either a grand or petit jury. But it does not follow, merely because the statute fixes the disqualifications and enumerates the causes for which a person may claim exemption from service on a grand or petit jury, that therefore the judge of the district court cannot excuse a person for any cause that would neither disqualify nor exempt him from jury service.
Counsel for appellant cite and rely upon the ruling in State v. McGarrity, 140 La. 436, 73 South. 259, and the ruling in State v. Smith, 145 La. 1091, 83 South. 264, in support of their motion to quash the indictment in this case. The decision in the McGarrity Case is not appropriate. In that case, after the court had appointed a foreman of the grand jury and the sheriff had drawn one of the eleven names to be drawn to complete the grand jury, the judge, without good reason, ordered the sheriff to return the name to the envelope and draw another. The result was that the man whose name was first drawn for service did not serve on the grand jury. In that way the court substituted another person for the one whose name had been regularly drawn for service.
In the case of State v. Smith, after the foreman had been appointed and the eleven other grand jurors had been impaneled, the [563]*563judge, of Ms own motion and without good cause, discharged six members of the grand jury and had six other names drawn from only seven names that remained in the box. None of the six grand jurors who were discharged had asked to be excused from service.
Of course, a district judge is not permitted to select a grand jury by the process of elimination. He has authority to appoint the foreman, but the eleven other grand jurors must be drawn by the sheriff, without discrimination, from the number of names remaining in the envelope. It might be deemed wrong, therefore, for the judge to excuse from service, whether with or without good cause, so many of the twenty persons whose names were selected by the jury commission as to eliminate the element of chance and make the impaneling of the grand jury a matter of selection or choice of the district judge. But that is not the case before us. There is no pretense on the part of appellant that there was any fraud or wrongdoing in the excusing of the two men from service on the grand jury; nor is it pretended that defendant was in any way injured or prejudiced by the judge’s having excused the two men from service. A person accused of crime has the right to insist that no incompetent person shall be a member of the grand jury that investigates Ms case; but he has no right to have any particular one of the competent persons drawn for service. Our conclusion is that the ruling on the motion to quash the indictment was correct.
[4] Bill of exceptions No. 2 was reserved to the overruling of defendant’s objection to certain evidence offered by the state to prove that false entries were made by defendant in the books of the bank of which he was cashier, on two occasions subsequent to the date of the alleged -embezzlement. The evidence showed that on' the day after the alleged offense defendant remitted $165.75 to another bank, and made an entry on the books of the bank of which he was cashier, showing that he had remitted $10,165.75. The evidence further showed that 18 days after the alleged offense defendant made a flat raise of $10,000 in the balance due to Ms bank by the other bank. In his instructions to the jury the judge restricted the evidence to the purpose for which it was offered by the state; that is, to show, as far as it might, that the defendant was covering up shortages in his accounts in the books of the bank of which he was cashier. It is' true, the evidence tended to show that defendant was covering up a shortage of $20,000; that is, a much larger amount than he was charged with having embezzled in this case. But it also appears that thkre were other indictments pending charging that defendant had embezzled other sums from the bank. The defense in this case was that, although defendant had caused to be remitted a cashier’s check in payment of a debt for which he had given his personal check, he had not had any intention of committing a crime or of defrauding the bank. The main question before the jury, therefore, was whether there was a criminal intent on the part of the defendant in the transaction for which he was indicted. The evidence tending to show that he subsequently undertook to cover up the shortage was relevant to the question at issue before the jury. As a general rule, in a prosecution for crime, proof that the defendant committed another and similar crime is not admissible for the purpose of showing a probability that he committed the crime for which he is on trial. That is because proof of the commission of one crime does not, of itself, give rise to a presumption that the perpetrator committed another and similar crime. The reason for the rule is, not alone that proof that the defendant committed another crime might have a prejudicial effect upon the mind of the jury, but also [565]*565that the defendant in the prosecution is not supposed to be prepared to defend himself against any other accusation than that which is contained in the indictment. But the mere fact that proof of the defendant’s having committed another crime may have a prejudicial effect upon the mind of the jury, or the fact that the defendant may not'be altogether prepared to counteract evidence of his having committed another crime, does not make such evidence inadmissible, if it he clearly relevant to any question at issue before the jury, pertaining to the defendant’s guilt or innocence of the crime for which he is on trial. In the case before us the evidence that defendant had made entries in the bank’s books, indicating an intention to cover up a shortage in his accounts, was in the nature of proof of an acknowledgment of having committed the crime charged in the indictment. The evidence was therefore admissible.
Bill of exceptions No. 3 was reserved to a portion of the judge’s charge to the jury. That part of the charge which was objected to is copied in the bill thus:
“Gentlemen of the jury, if you find from the evidence that the accused was cashier of the Citizens’ Bank, and that while he was cashier he drew a cheek against his individual account in the Citizens’ Bank in favor of the Kapides ■Bank & Trust Company for $2,516.67, and paid or caused to be paid the said check out of the funds belonging to the said Citizens’ Bank without in any way at the time accounting to the Citizens’ Bank for same, the transaction would be illegal and unlawful.”
In the statement per curiam the judge gives his version or recollection of the charge, in which it appears that the expression “without in any way at the time accounting to the Citizens’ Bank” is written “without in any way at any time accounting,” etc. The judge, however, refers us to the charge as originally written and delivered by him, which is copied in full in the transcript; and there the charge appears even more objectionable than it appears as copied by defendant’s attorneys in the bill of exceptions; for the expression, instead of being “without in any way at the time accounting to the Citizens’ Bank,” is written “without in any way at that time accounting to the Citizens’ Bank.” The charge, therefore, was not an accurate statement of the legal proposition. The facts on which the indictment was founded were these: Defendant had remitted to the Kapides Bank & Trust Company, at Alexandria, his personal check on the bank of which he was cashier for $2,516.67 to pay his personal obligation, for which he had pledged to the Rapides Bank his stock in the bank of which he was cashier. When the check came back for collection there was an insufficiency of funds to pay the same. Defendant therefore had a remittance made by a check of the bank itself, or cashier’s check. Under those circumstances it was not a correct instruction to charge the jury that the defendant would be guilty of embezzlement if he had paid his personal check with funds belonging to the Citizens’ Bank (of which he was cashier) without at that time accounting to the Citizens’ Bank for the same; for he might have been innocent of any crime if he had accounted to the bank at some previous time. We assume, from the statement per curiam, and particularly from the judge’s version or recollection of the charge, that he concedes that the charge as read and recorded was an improper one. For this reason the verdict and sentence will have to be annulled and the ease remanded.
Bills No. 4 and No. 5 relate to rulings upon defendant’s motion for a new trial, which we see no reason for reviewing.
In the assignment of errors defendant alleges that he was not present in court during [567]*567all of the proceedings had in this case, and particularly during the taking of evidence on the motion for a new trial,'and at the time when the motion was overruled, and when sentence was pronounced. The minutes of the court do not show affirmatively that-defendant was present in court during those proceedings. Therefore, if the verdict could otherwise be sustained, we would be compelled to remand the case for the purpose of showing whether defendant was actually present in court when the sentence was pronounced, and to correct the minutes in that respect.
. The verdict and sentence appealed from are annulled, and it is now ordered that this case be remanded to the district court for a new trial.
PROTO STY, X, dissents.
DAWKINS, X, concurs in the decree.