¶1The opinion of the court was delivered by
¶2The petitioner was indicted and pleaded “not guilty.” A jury was empaneled, and the case went to trial. During the examination of the first witness for the state, on his examination in chief, and before the defendant was permitted to cross-examine him, and before any other witness had been introduced, offered, sworn or examined, the state moved the court to quash and dismiss the indictment and to permit it to file an information against the defendant, for the purpose of making what was deemed by the prosecuting attorney a material allegation in the information, which had been omitted in the indictment under which the state was then proceeding. The defendant, petitioner herein, opposed said motion. The court, however, sustained the motion, and. the jury was discharged. Upon the filing of the information the court held the petitioner to bail in the sum of |3,000, and ordered that in default thereof he be committed to the county jail.
¶3The contention of the petitioner is that his restraint under said order is illegal because he had been put in jeopardy by the proceedings under the first indictment, and because under the law he cannot twice be put in jeopardy for the same offense. This court, however, cannot pass upon the question of the former jeopardy upon a petition for a writ of habeas corpus; and the legality of the proceedings under which he is restrained of his liberty is not called in question by the petition. The information is not assailed, and the subsequent proceedings seem to be regular. If the petitioner has been before in jeopardy for the same offense, *25that is a proper plea in bar, to be tried by the court, and, from the decision of which, an appeal would lié to this court. A stipulation accompanying the petition cannot confer jurisdiction on this court in a habeas corpus case.
¶4The petition is, therefore, denied.
¶5Anders, Scott, Hoyt and Stiles, JJ., concur.