Page:North Dakota Reports (vol. 3).pdf/173

 justice of the peace before issuing the warrant of arrest, or at any time. At a term of the District Court for Cass County next following such commitment the state’s attorney of said county filed an information in due form against said Magnus Peterson, charging him with “the crime of obtaining property under false pretenses.”

It will be unnecessary, for the purpose of disposing of this case, to set out the information in detail. It is conceded that it is a valid and sufficient information; also, that certain averments of fact, which are essential in an information or indictment charging said offense, were embodied in the information, but were ommitted from the complaint upon which the warrant of arrest was issued.

The petitioner, on being brought to trial on the information, pleaded in, abatement thereto that “he had never had a preliminary examination for the crime or offense charged, nor waived the same, and that the crime charged was not committed during the session of the court, and that the petitioner was not a fugitive from justice.” The antecedent history of the case appeared of record as above narrated, and no issue of fact was litigated upon the issues raised by the plea in abatement. The District Court overruled the plea, holding that the petitioner, having waived a preliminary examination, was in a position which authorized the state’s attorney to file an information against him for the offense charged by such information, and that the offense set out in the complaint was the same offense, in substance, as that charged in the information. This ruling is assigned as error in this court.

The petitioner refused to plead either guilty or not guilty, whereupon the court directed a plea of not guilty to be entered in his behalf, and after a trial the prisoner was found guilty. A motion was made and overruled in arrest of judgment, and the petitioner was sentenced to a term of six months in the state’s prison at Bismarck. Exceptions were saved to the several rulings above mentioned. While in the Cass County jail under said sentence the petitioner was awarded the writ of habeas corpus, directed to the sheriff of Cass County, and upon the return of