delivered to the defendant." We have set out somewhat in full the material parts of the complaint as the best possible answer to the objection urged against it by the defendant. No comment thereon is deemed necessary. The second question reported is answered in the affirmative.

From what has been said it follows that the third question reported should be answered in the negative and the fourth in the affirmative. They are each so answered.

BY THE COURT.-The first question reported is answered in the negative; the second in the affirmative; the third in the negative; and the fourth in the affirmative.

BARNES, J. (concurring).-I agree in affirmance, but not in the ground of decision. I think the decision amends sec. 4782, Stats. In my opinion the work of amending statutes should be left to the legislature. I reach the same conclusion in a different way. Sec. 3072m, Stats. forbids this court to reverse any judgment for any error in "procedure" unless it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse the judgment. This section was adopted long after sec. 4782. The court which would hold the preliminary examination and the one which conducted the trial is the same. The court must necessarily have held on the motions made on the trial that an offense was committed and that there was probable cause to believe the defendant guilty. The defendant fails to show wherein he was prejudiced by failure to give him a preliminary examination, or how the result would have been different had such an examination been granted. I therefore think the error in procedure should not result in reversal, because its prejudicial character is not apparent.

ON MOTION FOR REHEARING.

(October 6, 1914.)

one

[153] PER CURIAM.-Through inadvertence that part of ch. 63 of the Laws of 1905 amending ch. 218, Laws of 1899, so as to give the district court concurrent jurisdiction with the municipal court of "all charges for offenses arising within said county of Milwaukee, the punishment whereof does not exceed year's imprisonment in the state prison or county jail, or a fine not exceeding five hundred dollars, or by both such fine and imprisonment," was overlooked. The amendment, however, does not affect the decision rendered, which was to the effect that for minor offenses no preliminary examination is required where the examining magistrate has jurisdiction to try the defendant for the offense charged.

This note discusses the right of an accused person to a preliminary examination before being put on trial for an alleged offense. Waiver of a preliminary examination by an accused person, and the regularity and sufficiency of preliminary examination proceedings are not treated, nor is the right of an arrested person to a preliminary examination, before being imprisoned to await trial, considered. Cases discussing the right to hold an accused person for another charge after his waiver of a preliminary examination on the original charge, are collected in the note to State v. Pigg, 18 Ann. Cas. 521, and the right of a grand jury to find an indictment before or pending a preliminary examination of the accused person is discussed in the note to Knight v. District Court, Ann. Cas. 1912D 143.

II. In General.

At common law an accused person has no right to a preliminary examination before being put on trial for an alleged offense. The right to such an examination exists by virtue of some constitutional or statutory provision in the jurisdiction wherein the accused is put on trial. Holt v. People, 23 Colo. 1, 45 Pac. 374; State v. Gottlieb, 21 N. D. 179, 129 N. W. 460; State v. Hart, 30 N. D. 368, 152 N. W. 672. See the reported case. See also Bridgeman v. Kelyng (Eng.) 19; Holt v. People, 23 Colo. 1, 45 Pac. 374.

It has been held that the "due process of law" clause of the 14th Amendment to the Federal Constitution does not require a preliminary examination of the accused. Lem Woon v. Oregon, 229 U. S. 586, 33 S. Ct. 783, 57 U. S. (L. ed.) 1340.

In Canada in the provinces of Alberta and Saskatchewan, under a statute (Criminal

Code § 873a, 6 & S Edw. VII, ch. 8), which provides that "charges may be preferred by the Attorney-General or an agent of the Attorney-General or by any person with the written consent of the judge of the court or the Attorney-General or by order of the court," it has been held that a preliminary examination before a magistrate was not necessary. In re Criminal Code, 43 Can. Sup. Ct. 434, 16 Can. Crim. Cas. 459.

An accused person has no right to a preliminary examination where the examining court has jurisdiction to try the offense with which he is charged. See the reported case. Thus it has been held that where a justice of the peace had exclusive jurisdiction of an offense, subject to the power of removal, an accused person was not entitled to a preliminary examination before being put on trial. People v. Cuatt, 70 Misc. 453, 126 N. Y. S. 114. See also Byrnes v. People, 37 Mich. 515. Under Canadian statutes allowing the accused, at his election, to be tried in a summary manner by a stipendiary magistrate, it was held in the case of Rex v. McLeod, 39 Novia Scotia 108 that the accused had no right to a preliminary examination; but in Rex v. Williams, 11 British Columbia 351, 10 Can. Crim. Cas. 330, it was held that a conviction by a stipendiary magistrate without a preliminary inquiry was bad.

III. Prosecution by Information.

1. MAJORITY VIEW.

a. General Rule.

In the majority of jurisdictions where prosecution by information is permissible there are statutes prohibiting the filing of an information until after the accused person has been accorded a preliminary examination.

California.-Kallock v. Superior Court, 56 Cal. 229; People v. McCurdy, 68 Cal. 576, 10 Pac. 207; People v. Goldenson, 76 Cal. 328, 19 Pac. 161; Ex parte McConnell, 83 Cal. 558, 23 Pac. 1119. See also People v. Bawden, 90 Cal. 195, 27 Pac. 204; In re Mills Sing, 13 Cal. App. 736, 110 Pac. 693. Idaho.-State v. Braithwaite, 3 Idaho 119, 27 Pac. 731.

Kansas. State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471; State v. Montgomery, 8 Kan. 351; State v. Gleason, 32 Kan. 243, 4 Pac. 363; State v. Fields, 70 Kan. 391, 78 Pac. 833. See also State v. Watson, 30 Kan. 281, 1 Pac. 770.

Michigan. Washburn v. People, 10 Mich. 372; Turner v. People, 33 Mich. 363; Byrnes v. People, 37 Mich. 515; Sneed v. People, 38 Mich. 248; O'Hara v. People, 41 Mich. 623, 3 N. W. 161; People v. Sessions, 58 Mich. 594, 26 N. W. 291; People v. Brock, 64 Mich. 691,

31 N. W. 585; People v. Evans, 72 Mich. 367, 40 N. W. 473; People v. Wright, 89 Mich. 70, 50 N. W. 792. See also People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857.

Nebraska.-White v. State, 28 Neb. 341, 44 N. W. 443; Coffield v. State, 44 Neb. 417, 62 N. W. 875; Latimer v. State, 55 Neb. 609, 76 N. W. 207, 70 Am. St. Rep. 403; Jahnke v. State, 68 Neb. 154, 94 N. W. 158 (reversed on other points, 68 Neb. 181, 104 N. W. 154). See also Van Syoc v. State, 69 Neb. 520, 96 N. W. 266.

Ohio.-Gates v. State, 3 Ohio St. 293.

Oklahoma.-Fields v. State, 5 Okla. Crim. 520, 115 Pac. 608.

Utah. State v. Jensen, 34 Utah 166, 96 Pac. 1085; State v. Hoben, 36 Utah 186, 102 Pac. 1000; State v. Gustaldi, 41 Utah 63, 123 Pac. 897; State v. Pay, 45 Utah 411, 146 Pac. 300.

Wisconsin.-Martin v. State, 79 Wis. 165, 48 N. W. 119; State v. Sorenson, 84 Wis. 27, 53 N. W. 1124.

Thus in State v. Hoben, 36 Utah 186, 102 Pac. 1000, the court said: "Before one can be properly charged by information of the commission of a crime, the Constitution guarantees to him a preliminary examination before a committing magistrate." And in Jahnke v. State, 68 Neb. 154, 94 N. W. 158, 104 N. W. 154, the court said: "It has frequently been held in this and in other juris dictions that where prosecutions by information are allowed in the absence of a waiver by a defendant accused of crime of his right to a preliminary examination, he cannot be put upon trial for the crime charged over his objections until such preliminary hearing has been accorded him and he held to await a trial in the district court." See also Sneed v. People, 38 Mich. 248, wherein the court said: "Under our system an information cannot be filed against the accused and he compelled to go to trial thereon until after he has had an examination or waived the same. This gives him full opportunity, if he desires to avail himself of it, to ascertain fully the facts to be brought forth against him, and that in a much clearer and better manner than he could have ascertained them under the grand jury system."

In Missouri, under an act approved March 17, 1913 (Laws 1913, p. 225), the state cannot file an information charging a person with any felony until the accused has been accorded a preliminary examination, unless he has waived his right. State v. Flannery, 263 Mo. 579, 173 S. W. 1053. Under the prior Missouri Act of 1909 (Laws 1909, p. 460) an accused person against whom an information was filed had no right to a preliminary examination except when he was charged with a capital crime. State v. Schenk, 238 Mo.

429, 142 S. W. 263; State v. Pierce, 243 Mo. 524, 147 S. W. 970; State v. Anderson, 252 Mo. 83, 158 S. W. 817. The Missouri Act of 1909, supra, repealed the Act of 1907 (Laws 1907, p. 243), which required a preliminary examination in felony cases. State v. Schenk, 238 Mo. 429, 142 S. W. 263. Under the Missouri Act of 1905 (Laws 1905, p. 132), an accused person, against whom an information was filed, had no right to a preliminary examination, except when he was charged with a capital crime. State v. Schenk, 238 Mo. 429, 142 S. W. 263. See also State v. Moran, 216 Mo. 550, 115 S. W. 1126; State v. Payne, 223 Mo. 112, 122 S. W. 1062.

b. Where Information Is Set Aside. In jurisdictions wherein an accused person has a right to a preliminary examination before being put to trial on an information, it has been held that where the accused has been accorded a preliminary examination before the filing of an original information, he has no right to a second preliminary examination before being put on trial on an amended information filed after the original information has been set aside. Ex p. Nicholas, 91 Cal. 640, 28 Pac. 47; People v. Kilvington (Cal.) 36 Pac. 13; State v. Geer, 48 Kan. 752, 30 Pac. 236. Compare Ex p. Baker, 88 Cal. 84, 25 Pac. 966. In People v. Kilvington, supra, the court said: "We have no doubt of the correctness of the following propositions: (1) If A. has been properly examined before a magistrate, but no order holding him to appear before a proper court has in fact been made, an information filed against him before the commitment is entered and depositions are sent up is void. (2) In such a case, upon the filing of the order of commitment and depositions, the district attorney may, within the time provided by law, file a proper information; and the fact that the former information has been set aside by the court will not, in such a case, render a second examination and commitment necessary."

But it has been held that where the original information was quashed and set aside on the ground that the defendant could not be prosecuted for the specific offense therein alleged, because of the bar of the statute of limitations, the court could not legally authorize the district attorney to file a new information and place the defendant on trial for an offense separate and distinct from the one charged in the first information, and for which he had never been committed and held to answer by a committing magistrate. State v. Jensen, 34 Utah 166, 96 Pac. 1085.

c. After Inquisition by Coroner.

It was said obiter in the case of In re Sly, 9 Idaho 779, 76 Pac. 766, that under the

Idaho law an inquisition of a coroner is not a sufficient basis for an information by the public prosecutor.

d. Where Accused Is Fugitive from Justice

Statutes prohibiting the filing of an information until after the accused person has been accorded a preliminary examination, usually contain a proviso that a preliminary examination of the accused is not necessary, if the accused is a fugitive from justice at the time the information is filed. State v. Woods, 49 Kan. 237, 30 Pac. 520; People v. Kuhn, 67 Mich. 463, 35 N. W. 88. See also State v. Braithwaite, 3 Idaho 119, 27 Pac. 731; Washburn v. People, 10 Mich. 372; Coffield v. State, 44 Neb. 417, 62 N. W. 875; Latimer v. State, 55 Neb. 609, 76 N. W. 207, 70 Am. St. Rep. 403. In Washburn v. People, supra, the court said: "The statute (Laws of 1859, p. 393, § 8) provides that 'no information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination; provided, however, that informations may be filed without such examination against fugitives from justice.'” And in State v. Woods, supra, the court said: "It is contended that the trial court erred in requiring the defendant to plead to the information filed against him, because he had had no preliminary examination. This question is not properly here for our consideration, because no plea in abatement was filed.

It appears, however, from the record that at the time the information was filed the defendant was a fugitive from justice: therefore no preliminary examination necessary. (Crim. Proc. § 69.)"

was

In State v. Jeffries, 210 Mo. 302, 14 Ann. Cas. 524, 109 S. W. 614, it was held that a person against whom an information has been filed cannot complain that a codefendant who is a fugitive from justice has not been ac corded a preliminary examination.

2. MINORITY VIEW.

In a few jurisdictions wherein prosecution by information is permissible there are no statutes giving to an accused person the right to a preliminary examination before being put on trial by information and in those jurisdictions such an examination is not necessary. Ocampo v. U. S. 234 U. S. 91, 34 S. Ct. 712, 58 U. S. (L. ed.) 1231 (sec. 2 of Act No. 612 of the Philadelphia Commission of February 3, 1903 construed); Ratcliff v. People, 22 Colo. 75, 43 Pac. 553; Holt v. People, 23 Colo. 1, 45 Pac. 374; State v. Bunger, 14 La. Ann. 465; State v. Anderson, 30 La. Ann. 558; State v. Recorder, 42

La. Ann. 1091, 8 So. 279, 10 L.R.A. 137; State v. Werner, 128 La. 1, 54 So. 402; State v. Mates, 133 La. 714, 63 So. 294; State v. Belding, 43 Ore. 95, 71 Pac. 330; State v. Williams, 13 Wash. 335, 43 Pac. 15; State v. McGilvery, 20 Wash. 240, 55 Pac. 115. See also Ex p. Way, 48 Tex. Civ. App. 584, 89 S. W. 1075. In Holt v. People, 23 Colo. 1, 45 Pac. 374, the court said: "We have been unable to find any case holding a preliminary examination a necessary prerequisite to the filing of the information, except in those states in which, by constitution or statute, the right to file an information is limited to cases where there has been such an examination. On the other hand, in the states wherein no such limitation exists, it is uniformly held that a preliminary examination is not essential." And see State v. Mates, 133 La. 714, 63 So. 294, wherein the court said: "The return of the judge is, in substance, that the relator was arrested under an information, and made no request for the fixing of appearance bond, but demanded a preliminary examination, which was refused. The respondent judge gives the following reasons for his action: "That if every person charged with crime by indictment or information has the right to demand a preliminary trial, this court will have no time for its ordinary business. The court has now convened and applicant can secure an early trial.' Section 1010 of the Revised Statutes of 1870, in case of an arrest under a warrant issued on the oath of one or more credible witnesses provides for an examination before a competent judge or magistrate, as the case may be, and for the commitment of the accused, or his release on bail, if it should appear from the testimony of the witnesses that some crime or misdemeanor has been committed by the accused. We know of no statute that provides for such an examination after an indictment or information has been filed."

3. RULE IN MONTANA.

In Montana it has been held that an accused person has no right to a preliminary examination where an information is filed against him by leave of court; but in the absence of leave of court, one accused of crime cannot be put on trial by information without first being accorded a preliminary examination. State v. Brett, 16 Mont. 360, 40 Pac. 873; State v. Bowser, 21 Mont. 133, 53 Pac. 179; State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026; State v. Shafer, 26 Mont. 11, 26 Pac. 463; State v. District Court, 26 Mont. 275, 67 Pac. 943; State v. Vinn, 50 Mont. 27, 144 Pac. 773. See also State v. Martin, 29 Mont. 273, 74 Pac. 725. In State v. Brett, supra, the court said: "It appears by the record that the information upon which the defendant was convicted of the crime of

forgery was filed by leave of court. Nevertheless, it is argued, a prosecution by information, where there has been no preliminary examination, is illegal, and a violation of constitutional rights. Const. art. III, § 8, expressly provides that 'all criminal actions in the district court, except those on appeal, shall be prosecuted by information, after examination and commitment by a magistrate, or after leave granted by the court, or shall be prosecuted by indictment, without such examination or commitment, or without leave of court.' It is evident that one of the objects of the constitution was to do away, to a great extent, with the machinery and expense of a grand jury, by substituting therefor prosecution by information. It is not necessary, in order to vest power in the county attorney, to file an information that there shall be a preliminary examination and commitment. He may act, after leave has beer granted by the court, in a case like the one at bar, where there may not have been any charge or information before a committing magistrate. One of two methods of procedure is indispensable where an information is filed, -either there must have been an examination and commitment, or there must have been leave of court procured. But both steps are not required. A plain interpretation of the words of the constitution by which every clause of the section quoted shall be effective leads to this conclusion. We think, too, that the rights of a defendant are guarded, no matter what procedure is followed."

4. RULE IN NORTH DAKOTA.

In State v. Winbauer, 21 N. D. 161, 129 N. W. 97, the court stated the rule in North Dakota as follows: "No constitutional provision is found in this state requiring a preliminary examination before filing an information in criminal proceedings, but § 9791, Rev. Codes 1905, provides as follows: 'During each term of the district court held in and for any county or judicial subdivision in this state at whch a grand jury has not been summoned and impaneled, the state's attorney of the county or judicial subdivision, or other person appointed by the court as provided by law to prosecute a criminal action, shall file an information, or informations, as the circumstances may require, respectively, against all persons accused of having committed a crime or public offense within such county or judicial subdivision, or triable therein. (1) When such person or persons have had a preliminary examination before a magistrate for such crime or public offense, and, from the evidence taken thereat, the magistrate has ordered that said person or persons be held to answer to the offense charged or some other crime or public offense disclosed by the evidence. (2) When the

crime or public offense is committed during the continuance of the term of the district court in and for the county or judicial subdivision in which the offense is committed or triable.' The remainder of the section is not applicable to the case at bar. Prior to 1895, a preliminary examination was necessary in all cases. Hence former decisions of this court, based upon the right of a party to a preliminary examination before the filing of an information in the district court, are not in point."

Under the foregoing North Dakota statute it has been held that an accused was entitled to a preliminary examination before being called on to answer an information charging an offense committed while the district court was not in session. State v. Winbauer, 21 N. D. 161, 129 N. W. 97. But it has been held that where an offense was committed during a term of the district court, the accused was not entitled to a preliminary examination before being called on to answer an information. State v. Riley, 26 N. D. 236, 144 N. W. 107.

By North Dakota Laws of 1909 (chap. 80 § 35), it is provided that "no preliminary examination shall be necessary before trial in criminal actions in the county court." The foregoing statute was declared to be constitutional in State v. Gottlieb, 21 N. D. 179, 129 N. W. 460, wherein the court said: "It was not error to deny appellant's motion for a preliminary examination. The statute governing the practice in county courts expressly provides that 'no preliminary examination shall be necessary before trial in criminal actions in the county court.' (Laws 1909, chap. SO, § 35.) That such statute is constitutional we entertain no doubt. The constitution of this state confers no right to a preliminary examination. If such right exists, it is by virtue of some statute. Such was the express holding of this court in State v. Rozum, 8 N. D. 548, 80 N. W. 477. See also 1 Bishop, New Crim. Proc. § 239a. Nor does a statute such as chapter 80, Laws 1909, contravene the 'due-process-of-law' clause in our Constitution, or in the Federal Constitution. Hurtado v. California, 110 U. S. 534, 28 U. S. (L. ed.) 238, 4 S. Ct. 111, 292; Hallinger v. Davis, 146 U. S. 314, 36 U. S. (L. ed.) 986, 13 S. Ct. 105; State v. Krohne, 4 Wyo. 347, 34 Pac. 3. The opinion in the latter case, to our minds, fully answers the very ingenious argument of appellant's counsel upon this branch of the case. Such argument would, no doubt, have much to commend it if addressed to the legislature, instead of to the courts. As argued by counsel the statute dispensing with preliminary examinations in the county court may, for reasons stated, be very harsh and drastic in many instances; but the remedy for this rests with the legis lature, not the courts."

Prior to the enactment of the foregoing statutes it was held in State v. Hasledahl, 3 N. D. 36, 53 N. W. 430, that where an accused has been given a preliminary examination prior to the filing of an information, a second examination need not be ordered prior to the filing of a second information for the same offense curing defects in that first filed.

5. RULE IN WYOMING.

By section 7 of chapter 59 of the Wyoming Session Laws, 1890-91, it was provided as follows: "No information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, and shall have been held for trial by such court or officer, unless such person shall have waived his right to such examination; Provided, however, that informations may be filed without such examination against fugitives from justice, and in misdemeanor cases not punishable by a justice of the peace, or whenever the county and prosecuting attorney is satisfied that a crime or offense has been committed in this county." The foregoing act was held to be constitutional, and under its terms it was held that an information could be filed by the prosecuting attorney without a previous preliminary examination. State v. Krohne, 4 Wyo. 347, 34 Pac. 3. The act quoted supra, was amended by section 7 of chapter 123 of the Laws of 1895, so as to provide as follows: "Whenever an offense shall be charged against any person, at any time within thirty days immediately preceding the first day of a regular term of court of the county wherein such offense is charged to have been committed, or within thirty days immediately following the first day of such regular term of court, provided such term shall continue in session for such period, then and in either of such cases, information may be filed without such examination; but in cases last named, the accused shall have the right to a trial at such term of court; Provided, that if the defendant shall not be tried at such term of the district court for the reason that the case is continued upon the application of the prosecution, the defendant shall be entitled to an immediate examination before a committing magistrate." It has been held that the thirty days mentioned in the foregoing amendment are to be computed from the date of the preferring of the charge, and not from the date of the commission of the alleged offense. Ackerman v. State, 7 Wyo. 504, 54 Pac. 228, wherein the court said: "This charge was preferred on October 23, and the meeting of court was November 8, following an interval of less than thirty days. It is evident that the thirty days mentioned in