Page:North Dakota Reports (vol. 3).pdf/81

 of the subsequent proceedings. Irregularity in such proceedings cannot affect these anterior disconnected proceedings. The grand jury act judicially in making the investigation and in finding the indictment. The state’s attorney, in filing an information, is governed by the record of a prior complete, independent judicial investigation similar to that made by a grand jury. When the trouble is not with this precedent examination, how can it be affected by a defect in subsequent proceedings? What error the state's attorney has made in proceedings subsequent to the pre- liminary examination, i. e., the information, can no more touch the soundness of that examination than the former’s subsequent error can affect a valid indictment based on a proper investigation. To make the authorities sustaining the necessity of a new examintionexamination [sic] to warrant a new indictment analogous, we must have a case presenting a defect in the proceedings before the committing magistrate, and not merely in the information. Is the power to file an information gone because an hour before a defective one has been filed and quashed on demurrer? Notwithstanding the fact that the valid information might have been originally filed an hour previous, must all proceedings be regarded as annihilated, and, in order to correct the error by filing such valid information, must it be deemed necessary to rearrest the accused, to conduct a new examination, and have him held a second time for the same offense, burdening him and the public with additional trouble and expense, and necessitating his giving a new bond, merely because the first information was technically defective? The duty of the state’s attorney is to file such valid information as is warranted by the record of the preliminary examination, and, whenever a prisoner is arraingedarraigned [sic] under a new or an amended information, the only inquiry is whether it is a proper information, in view of the preliminary examination. It is strictly true, in such a case, that there has been and is a preliminary examination to support such an information.

It is urged that the evidence is insufficient to warrant a conviction. The plaintiff in error was charged with embezzling a sum