Page:North Dakota Reports (vol. 3).pdf/77

a new information to obviate the technical defect in the former one. Such a new information was filed. It was in all respects practically the same as the former information, with the exception of a statement that it was filed in the name and by the authority of the State of North Dakota. It is urged that it was improper to allow this information to be filed as the basis of a criminal prosecution without a new preliminary examination. That there had been such an examination before the defective information was filed is undisputed. That this examination was sufficient in all respects to warrant the filing of an information for the offense charged in the new information filed is uncontroverted. Why it should be necessary to re-examine the accused before a committing magistrate, in order to correct a technical defect not in the proceedings on such examination, but in an information filed thereafter, it is difficult to understand. The language of the statute does not require it, nor does the spirit of the law demand it. The main purpose of the provision requiring such an examination before the state’s attorney shall have power to file an information is to protect the citizen against the arbitrary action of that officer. The return of an indictment, only after an examination of evidence by a grand jury, guarantied the citizen, as a rule, against prosecutions without probable cause. This guaranty is perpetuated by the requirement that there shall be a preliminary examation before a committing magistrate. After such an examination has been had,—one sufficient to sustain an information,—it is idle to urge that the rights of the accused are in the least prejudiced by the filing, without a second preliminary examination, of another information to take the place of the former defective one,—to amend it wherein it was technically insufficient,—charging the same offense charged in the former information, and differing therefrom only by supplying a formal part omitted from the first information. No authority can be found to uphold such a contention. But we are referred to cases wherein it is held that, where an indictment is set aside as defective, the case must be resubmitted to the same or another grand jury; and in one case it