In re Palm

¶1delivered the opinion of the court.

¶2Jack Palm was charged by information with the commission of a felony. He demurred to the information, but before the court passed upon his objections the county attorney moved to dismiss and for leave to file a new information. The court’s [1] minutes recite the procedure had as follows: “Pending the ruling on demurrer to information, on motion of county attorney and by consent of the court, the information originally filed is ordered dismissed and a new information is ordered filed. The eourt then stated that he sustained the demurrer to the first information.” The new information was filed and the accused *559applied to this court for his release from custody on habeas corpus.

¶3The applicant contends that he is entitled to his release because of irregularities in the procedure in the court below. Sections 9203 and 9204, Revised Codes, provide:

“9203. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.

“9204. If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, or another or an amended information, directs the ease to be submitted to another grand jury, or directs another or an amended information to be filed.”

¶4The irregularities of which complaint is made are more apparent than real. The application of the county attorney for leave to dismiss the original information amounted to nothing more than a confession of the demurrer, and the order granting the motion and the order sustaining the demurrer in legal effect amounted to a judgment of the court that the original information was insufficient. That document out of the way, then, the question whether a new or amended information should be filed was addressed to the court. It could be filed only upon the order of the , court, and such order could be made only in the event that the court first determined that the objection to the original information could be avoided in the new one. (Sec. 9204, above.) It is true, as petitioner contends, that the record does not disclose, as it might well have done, that the court entertained such opinion; but the statute does not require that the opinion itself shall be spread upon the record or that the record shall recite that the court had first formed such opinion. The record does disclose that the court ordered the new information to be filed.

¶5*560The provision of section 9204 is intended to safeguard the rights of the accused against an altogether unwarranted prosecution or the possible malice of the prosecuting officer (State v. Vinn, 50 Mont. 27, 144 Pac. 773), but it is not intended to shield an offender against prosecution merely because of some technical defect, irregularity or insufficiency in the original information or indictment.

¶6The burden of determining whether further proceedings shall be taken is placed upon the court. It cannot be shifted to the county attorney who may be biased or prejudiced (State v. Crook, 16 Utah, 212, 51 Pac. 1091); but when the court orders the new information to be filed, the order itself presupposes the existence in the mind of the court of that opinion upon which alone the order can be made.

¶7The record, though informal, discloses that the rights of tlie accused were secured and that the requirements of the statute were observed. (People v. O’Leary, 77 Cal. 34, 18 Pac. 856.) The accused will not be heard to say that he ought to escape even a trial, merely because the county attorney omitted from the original information a material allegation, which he could properly include in a new one.

¶8The proceeding is dismissed and the petitioner is remanded to the custody of the sheriff of Missoula county, to await further action by the court below.

¶9Dismissed.