Page:North Dakota Reports (vol. 3).pdf/174

 the writ the foregoing facts are upon the record of this court.

Upon the facts appearing of record, only one question arises upon the merits. It is this: In waiving a preliminary examination before the magistrate, did the petitioner, within the meaning of the statute, waive an examination for the crime or offense charged in the information lodged against him by the state’s attorney? We think he did. Section 8, Ch. 71, Laws 1890, provides, with certain exceptions, not necessary to notice in this case, that “no information shall be filed against any person for any crime or offense until such person shall have had a preliminary examination therefor, as provided by law, before a committing magistrate or other officer having authority to make preliminary examinations, unless such person shall waive his right to such examination,” etc. The manifest purpose of this provision of the statute is, with the exceptions specified in the statute, to prohibit the state's attorney from filing an information in the District Court charging any person with a public offense until the person accused has first had or waived a preliminary examination before an examining magistrate upon a complaint charging the offense set out in the information filed in the District Court. The grand jury being abolished, this statute was enacted to furnish the citizen with a substantial safeguard against hasty and ill advised prosecutions for grave" public offenses. Without this statute, or one of similar import, the grand jury no longer existing, a citizen would be required to stand his trial for a felony on the mere accusation of one person, viz: the state’s attorney. It was to prevent such a state of things that the statute above quoted was enacted, and it should therefore be upheld, and not be frittered away by judicial construction. Was the petitioner denied any right secured to him by the statute? He exercised his privilege, and waived an examination, which was tendered to him. In so doing did he waive an examination, within the meaning of the statute? In other words, was the examination tendered him by the proceedings in justice's court such as is “provided by law?” The prisoner's counsel has suggested but one reason why the preliminary