majority">BURGESS, J.

-At the May term 1898, of the circuit, court of Hickory county, defendant was indicted by the grand jury of said county for obtaining by false pretenses and representations, a deed from one John T. Dixon to a certain tract of land in said county, of which he was the owner, of the alleged value of two thousand dollars.

At the following November term of said court, he was tried by a jury, and under the instructions of the court acquitted upon the ground that there was a variance between the charge in the indictment and the proof made upon the trial. At the same term of said, court the grand jury of said county returned a new indictment against H. O. Nelson and the defendant "William Moore for the same offense.

At the May term 1899 of said court defendant filed his motion for a change of venue from the Hon. Argus Oox, the regular judge, then presiding, whereupon the cause was set for trial July 31, 1899, and the Hon. James T. Neville, judge of the 22d judicial circuit, was called to try the case. On the day last named the case came on for trial before the Hon. James T. Neville. Defendant then filed his application for a change of venue from the county, which was overruled. He then filed his motion to quash the indictment which was sustained, and defendant ordered held to await the action of a special grand jury.

The Hon. Argus -Oox then appeared in court, and by order entered of record, made an order for a special grand jury, in pursuance of which a special grand jury was summoned, by whom defendant and Nelson were again indicted for the same offense.

This last indictment charges that “on or about the 18th day of May, 1897, at the county and State aforesaid, H. C. Nelson and William Moore did then and there unlawfully, *139willfully, designedly and feloniously, with the intent to cheat and defraud one John T. Dixon, did then and there unlawfully, falsely, fraudulently and feloniously pretend and represent to the said John T. Dixon that he, the said, H. O. Nelson, was the owner in his own right in fee, under good and sufficient conveyances from George Garrison, of a certain farm or lands well known to the said John T. Dixon, and to the said defendants as the Breitenstein land or farm, and that it was at one time owned by the said Breitenstein and conveyed by the said Breitenstein to George Garrison, and they the said H. O. Nelson and the said William Moore further pretended and represented to the said John T. Dixon, that the said Breitenstein farm or lands was designated by government survey as the east half of the northeast quarter of section 21, township No. 10, of range No. 14, in Oass county, ■ Nebraska, and that the said land or farm with the improvements thereon were worth the sum of two thousand dollars. And the said John T. Dixon being then and there at the time the -owner of the following described lands situate in the county of Hickory and State of Missouri, to-wit, the north half of the southwest quarter and the north half of the southeast quarter of section No. 13, township No. 38 of range No. 21, and said lands being of the value of two thousand dollars, and the said John T. Dixon, believing and relying on the said false and fraudulent representations and pretenses so made as aforesaid by the said H. O. Nelson and the said William Moore to be- true and being' deceived thereby, was induced by reason of said false and fraudulent representations and pretenses aforesaid, to sign, acknowledge and deliver to the said H. O. Nelson a warranty deed conveying all the right, title -and interest of the said John T. Dixon in and to the north half of the southeast quarter and the north half of the southwest quarter of section No. 13, township No. 38, range No. 21, in Hickory county, Missouri, of the value of two thousand dollars. And the said John T. Dixon was induced by reason *140of said false and fraudulent representations to' receive and did receive of and from tbe said IT. C. Nelson, in exchange for his said lands, a deed from the said H. C. Nelson, purporting to convey to him the s#id John T. Dixon the land in Cass county, Nebraska, well known to the said John T. Dixon as the Breitenstein land or farm, at one time owned by Breitenstein and conveyed by him the .said Breitenstein to George Garrison the lands in said deed being numbered as the east half of the northeast quarter of section 21, township No. 10, range No. 14. That the said H. O. Nelson and the said William Moore falsely and fraudulently stated, represented and pretended that the said east half of the northeast quarter of section 21, township No. 10, range No. 14, was the land known as the Breitenstein land or farm in Cass county, Nebraska, and conveyed from Breitenstein to George Garrison, when in truth and in fact said statements and representations were wholly false and fraudulent, all of which the said TI. O. Nelson and the said William Moore knew at the time; when in truth and in fact the north half of the northeast quarter of section 21, township No. 10, range No. 14, did not describe nor convey to the said John T. Dixon the land or farm known to the said John T. Dixon as the Breitenstein land or farm, all of which the said TI. C. Nelson and the said William Moore knew at the time; when in truth and in fact the said TI. O. Nelson had no right, title or interest in the land known as the Breitenstein land or farm, in Cass county, Nebraska, and the grand jurors aforesaid' upon their oaths aforesaid, present and charge that the said TL O. Nelson and the said William Moore, in the manner and form aforesaid and by the use of the false and fraudulent representations and pretenses aforesaid, did unlawfully, willfully and feloniously procure the signature of the said John T. Dixon and his acknowledgment and the delivery of his warranty deed, conveying to the said H. C. Nelson the north half of the southwest quarter and the north half of the southeast quarter *141of section No. 13, township No. 38, range 21, in Hickory-county, Missouri, of the value of two thousand dollars, by the means and in the manner and form aforesaid, did then and there willfully, unlawfully and feloniously induce him, the said John T. Dixon with the intent him the said John T. Dixon, then and there to cheat and defraud, and him the said H. C. Nelson and him the said William Moore did then and there, by means and use of the false and fraudulent representations and pretenses aforesaid, unlawfully and feloniously procure the signature of the said John T. Dixon to his warranty deed aforesaid, and him the said John T. Dixon, unlawfully, fraudulently and feloniously did cheat and defraud, against the peace and dignity of the State.”

After the indictment had been returned into court Judge Cox made an order of his own motion, that he was biased and prejudiced against defendant, and again called Judge Neville to try the case, who proceeded to do so. Thereupon defendant filed a plea in bar to this last indictment alleging a former trial, and acquittal in said circuit court, at its November term, 1898, of the same offense. This plea was on motion of the State stricken out.

Hpon the last trial defendant was convicted as charged, and his punishment fixed at three years imprisonment in the penitentiary.

After an unsuccessful motion for a new trial and also in arrest, he appeals.

It is asserted that the court erred in overruling defendant’s application for a change of venue, but the bill of exceptions fails to show that any such application was made after the indictment under which he was convicted was presented by the grand jury, and the last indictment being in law a new case, an application for a change of venue under any prior indictment and its refusal, can not be availed of by the defendant in this case.

It is asserted that the regular judge erred in ordering a *142special grand jury, after he had been disqualified from trying the case under a former indictment at a preceding term of the court, and that the indictment returned by that grand jury, being the one under which defendant was convicted, is null and void. Judge Neville was only called for a special purpose, that is, to try the case then pending against defendant, and it was entirely legal and proper for the regular judge to order and impanel the grand jury, or to transact any other legal business, over which his court had jurisdiction. There was then no indictment pending against defendant, and the fact that the judge had been disqualified from sitting on the trial of him under a former indictment, although growing out of the same transaction, did not disqualify him from ordering the special grand jury. Moreover, no objection was taken at the time of the action of the court or to the indictment thereafter returned and it can not be done for the first time in this court.

It is insisted that the court erred in sustaining the motion to strike out the plea of former acquittal. In answer to this contention it is sufficient to say that the indictment under which defendant was tried and convicted is not copied into the record, but is stated therein by the clerk of the court to be lost, and there is, therefore, nothing to show that the indictment under which the first trial was had, was for the same offense as that charged against him in the indictment under which he was convicted.

Moreover even if it was the same offense the record shows that defendant was acquitted on the trial of the first case upon the ground of variance between the indictment and the proof, and, under such circumstances the former acquittal was no bar to a subsequent indictment and prosecution for the same offense. [Sec. 3952, R. S. 1889; sec. 2372, R. S. 1899.] The acquittal on the ground of variance between the proof and the allegations in the indictment being matter of record, defendant was not entitled to have a trial by jury on his plea in *143bar. [State v. Huffman, 136 Mo. 58.] Eor the same reasons there was no einor committed in giving the second instruction for the State, which was upon the same theory.

We are unable to see any objection to the indictment. It contains all necessary averments in order to constitute the offense charged and of which defendant was convicted.

It follows from what has been said that there was no error in overruling the motion for new trial, or in arrest of judgment.

The judgment should be affirmed, and it is so ordered.

Qantt, P. J., and Sherwood, J., concur.

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