Page:North Dakota Reports (vol. 3).pdf/79

any further examination of witnesses. It was held that the second indictment must be squashed. It will-be noticed that in this case the first indictment was quashed. It was utterly annihilated. -There was nothing to amend. Its destruction carried down with it the examination of witnesses before the grand jury. Such examination could have no separate existence apart from the indictment. No record of such examination is required to be, nor is it ever, kept. But the record of a preliminary examination is entirely distinct from the information, and can and does exist after the information is destroyed. But in the case at bar the information was not set aside. A demurrer was interposed to it. The demurrer was overruled. On writ of error, this court held that the demurrer should have been sustained because of the omission from the caption of words showing that it was filed in the name and under the authority of the state. The conviction was reversed. The case then stood as though the trial court had sustained the demurrer. That court made an order directing the filing of a new information to remedy the defect in the former one. This was equivalent to an amendment, and, as an information must be verified, it is perhaps the better practice to make an amendment in this manner; otherwise it can be said that the verification to the old information does not embrace the new matter interpolated into the information by amendment. As the information was not quashed, the preliminary examination was unaffected. It continued to stand, and it was therefore true that there had been a preliminary examination as a foundation for the filing of the amended information. The same conclusion is inevitable, if we regard the old information as set aside, and consider that an entirely new information was filed. Setting aside an information does not touch the preliminary examination. The foundation remains. Setting aside or quashing an indictment destroys the whole proceeding. There must be a new indictment found by the grand jury, and this necessitates a judicial investigation by that body. As the law contemplates no record of the examintion, as it does of a preliminary examination, the grand jury cannot refer