Page:North Dakota Reports (vol. 3).pdf/80

 to such a record in finding the new indictment, but must begin the investigation as though no prior indictment had been found. It is on this principle that the Ivey case stands. No such principle is applicable to the case at bar. The Ivey case is not in point for another reason. In that case there was a radical change in the indictment, and not, as in the case at bar, a mere amendment of the caption. In the Ivey case, had there been a defect in the caption only, it is clear, upon authority, that the indictment could have been amended in that respect, not only by the grand jury, under the order of the court, but by the court without the presence, consent or knowledge of the grand jury. McGuire v. State, 72 Am. Dec. 124; State v. McCarty, 54 Am. Dec. 150; State v. Creight, 2 Am. Dec. 656; State v. Jones, 17 Am. Dec. 483; 10 Am. & Eng. Enc. Law, p. 536, note 3; 1 Bish. Crim. Proc. § § 661, 662. Indeed, there is authority for the proposition that an indictment may be withdrawn from the files, and recommitted to the same grand jury, who may amend it without a re-examination of witnesses. State v. Davidson, 2 Cold. 184. In the Ivey case this was not done. The old indictment was quashed on the motion of the prosecuting officer. There was nothing left to send back to the grand jury for amendment. The Ivey case does not decide that an indictment may not, on order of the court, be returned to the same grand jury, and be by them amended without further examination. But in the case at bar the body of the information has not been changed. There was a mere alteration in the caption. But, construing the information as a new one, there can be no question about the right of the state’s attorney to file it under the order of the court, without another preliminary examination. It would, indeed, be singular if, when a demurrer to an information had been sustained for defects therein, no amendment thereof could be made, or the old one could not be supplanted by a new one correcting the error, without an entirely new preliminary examination. The quashing of the old information does not carry with it the preliminary examination. The preliminary examination is complete in itself, and entirely independent