¶1(dissenting). — I do not concur in the foregoing opinion. By the second section of the statute relating to the St. Louis court of criminal correction, the powers of a court of record are ascribed to that court in the broadest language. The section is as follows: “Said court of criminal correction shall be a court of record, and shall possess all the powers, and perform the duties, and be subjected to the restrictions, of a court of record, according to the laws of this state.” 2 R. S. 1889, sec. 2, p. 2152. ,
¶2By section 7 of the statute, the powers of an examining magistrate are conferred upon the judge, but he is required to exercise such powers as a court, and while sitting as a court and in no other manner. This section, so far as material to this inquiry, is as follows : “ And in cases of felony he shall have and may exercise all the powers of an examining magistrate ; but all complaints or information and affidavits setting forth the offense in preliminary examinations of felony in said court, as well as in cases of misdemeanor, shall be prepared or approved by said prosecuting or said assistant prosecuting attorney, or the person for the time being acting as such, and shall be sworn to before the clerk of said court, and all warrants and processes in such cases shall be issued under the hand of the clerk of said court, with the official seal of said court thereto affixed, and such examinations shall be conducted during the open session of said court.” 2 R. S. 1889, sec. 7, p. 2153. This section it is perceived, speaks of “preliminary examinations of felony in said court.” Moreover, it calls into requisition all the machinery of the court, as fully as the machinery of any court of *548record ever is or can be called into requisition in such a case. The complaints and informations must be issued by the prosecuting attorney; must be sworn to before the clerk ; all process must be issued by the clerk, and under the seal of the court; and all examinations must be conducted during the open session of the court. This language is, to my mind, utterly incompatible with the conclusion, that, in exercising this function, the judge acts merely ex officio, and as a justice of the peace.
¶3Section 17 of the same act is as follows: “Said court shall have the power to take recognizances in all cases within its jurisdiction, to declare forfeitures of the same, and award executions upon such forfeitures, in like manner and with the same legal effect as the St. Louis criminal court is authorized to do.” 2 R. S. 1889, sec. 17, p. 2155. I am of opinion that the case prescribed in section 7, where the judge acts as an examining magistrate in open court, is a case within the jurisdiction of the court, and not merely within the powers of the judge, within the meaning of this section.
¶4Being of this opinion, I cannot understand upon what theory or conception it can be held that a court, possessing, by a broad and extensive grant, the powers of a court of record, and obliged to perform a certain function as a court, and sitting as a court and having the po wer to take recognizances in all cases within its jurisdiction, to declare forfeitures of the same, and to award executions thereon, should be obliged to send any part of its i’ecord to another court of record, in order to have any part of this last function performed. I, therefore, dissent from the foregoing opinion ; and am of opinion, that the judgment of the criminal court should be reversed, and that the case should be remanded to that court, with directions to remand the record of the St. Louis court of criminal correction to that court, to be there proceeded with in conformity with the views herein expressed.