When this appeal was called for hearing in this Court, counsel for defendant moved that the judgment of the Superior Court in this action be arrested, for that it does not appear from the record certified to this Court that in his order for a special term of the Superior Court of Chatham County, to begin on Monday, 6 August, 1934, the Governor of this State ordered that a grand jury should be drawn at said special term. The defendant contends that the indictment on which he was tried and convicted is void for that said indictment was returned by a grand jury which was drawn, chosen, sworn, and impaneled without lawful authority, and that for this reason the judgment on his conviction of the crime charged in said indictment should be arrested by this Court.
The record certified to this Court in this appeal shows that the sole authority for the holding of the special term at which the indictment was returned, and at which the defendant was tried and convicted, was the letter set out in the record. The record does not contain an order by the Governor for the holding of said special term. We were apprehensive that the order of the Governor, referred to in the letter, had been omitted from the record by an inadvertence, and for that reason caused a writ of certiorari to be sent from this Court to the clerk of the Superior Court of Chatham County directing the said clerk to send to this Court certified copies of any orders or commissions from the Governor on file in his office relative to said special term. The return on this writ shows that the letter appearing in the record certified to this Court was the sole authority for the holding of said court, and that at the time the court convened for the purpose of holding a special term, there was no order or commission in the records of said court relative to said special term. For the purposes of defendant’s motion for the arrest of *94the judgment in this action, we must accept the record as certified to this Court in this appeal.
It does not appear in the statement of the case on appeal that the defendant moved in the Superior Court for the arrest of the judgment on the ground assigned for his motion in this Court. However, it is well settled that a motion for the arrest of a judgment of the Superior Court in a criminal action tried in that court may be made in the Supreme Court at the hearing of an appeal from the judgment of the Superior Court. S. v. Marsh, 132 N. C., 1000, 43 S. E., 828. Indeed, in S. v. Watkins, 101 N. C., 702, 8 S. E., 346, it is said by Merrimon, J.: “It is the duty of this Court to look through and scrutinize the whole record, and if it sees that the judgment should be arrested, it will, ex mero motu, direct that it be done.” The motion must be based upon matter appearing in the record, or upon an omission from the record of some matter which should appear therein. S. v. Jenkins, 164 N. C., 521, 80 S. E., 231.
The power of the Governor to order a special term of the Superior Court for any county in this State, for the trial of criminal or civil actions, is statutory. C. S., 1450. See S. v. Ketchey, 70 N. C., 622, in which it was held that the statute authorizing the Governor of this State to order a special term of the Superior Court is valid. When he has ordered such term to be held in any county of this State, it is the duty of the Governor to appoint one of the judges of the Superior Court to hold such term, and to issue to the judge appointed by him a commission authorizing him to hold such court. If a special term is ordered by the Governor for the trial of criminal actions, no grand jury shall be drawn at such term, unless the Governor shall so order. C. S., 1454. Unless a grand jury is ordered for such term, only criminal actions pending in the court at the time the special term convenes may be tried at such term. When, however, the Governor expressly orders a grand jury to be drawn at such term, indictments returned by such grand jury may be tried at such term.
Conceding without deciding that the letter appearing in the record in this appeal is sufficient authority for the holding of a special term of the Superior Court of Chatham County, beginning on Monday, 6 August, 1934, for the trial of criminal actions, we must hold that in the absence of any order of the Governor that a grand jury be drawn at said term, the indictment returned at said time is void, and for that reason the motion of the defendant, first made in this Court, that the judgment in this action be arrested, must be allowed. If we should hold otherwise, the defendant would be deprived of a right guaranteed by the Constitution of this State. Const, 'of N. C., Art. I, sec. 12.
The defendant will not be discharged from custody, but will be held subject to further action by the Superior Court of Chatham County.
*95Tbe judgment in tbis action is arrested; for that reason it is needless to discuss tbe assignments, of error appearing in tbe case on appeal, on wbicb defendant relies to support bis contention tbat be is entitled to a new trial of tbis action.
Judgment arrested.