Page:North Dakota Reports (vol. 3).pdf/76

 State vs. Hasledahl.

Opinion filed Nov. 4th, 1892.

New Information Filed to Cure Defects Without New Preliminary Examination.

Where an information was adjudged defective by the Supreme Court because it did not state that the prosecution was in the name and under the authority of the state, and the case was reversed, Ae/d, it was not error for the trial court to make an order allowing the state’s attorney to file a new information curing the defect, without a new preliminary examination of the accused.

Presence of Accused not Necessary.

The making of such an order is no part of the trial, within the meaning of § 7321, Comp. Laws, providing that the defendant must be personally present at the trial when the offense is felony, and it is therefore not necessary that defendant should be personally present when such order is made.

Harmless Error.

If notice to defendant or his counsel of application for such order was necessary, the error, if any, in failing to give such notice, was error without prejudice. For such an error there can be no reversal. Section 7588, Comp. Laws.

Weight and Sufficiency of Evidence.

Evidence examined, and held sufficient to warrant a conviction.

Error to District Court, Richland County; Lauder, J.

Martin O. Hasledahl was convicted of embezzlement and brings error.

Affirmed.

M.A Hildreth, for plaintiff in error.

C. A. M. Spencer, Attorney General; S. H. Snyder, State's Attorney, and W. £. Purcell, for the state.

Corliss, C. J. The plaintiff in error has been twice convicted of embezzlement. The conviction on the former trial was reversed because of a defect in the information. State v. Hasledahl, 2 N. D. 521; 52 N. W. Rep. 315. It failed to show on its face that the prosecution was in the name and by the authority of the State of North Dakota. After the case was remanded, the District Court made and entered and order directing the state's attorney to file