The filing of an information after the pre liminary examination, but before a return of it made by the examining magistrate, is a mere irregularity and does not vitiate the proceedings ; People v. Tarbox, 115 Ca]. 57, 46 Pac. 896. In Colorado, by statute, an in formation may be filed without a prelim inary examination, upon the affidavit of any person who has knowledge of the commis sion of the offence and is a competent wit ness; Holt v. People, 23 Colo. 1, 45 Pac. 374; Noble v. People, 23 Colo. 9, 45 Pac. 376.
Where a complaint charged perjury on a certain date, and examination was waived, and the information subsequently filed charged the commission of the crime on another date, a plea in abatement on the ground that there was no examination on the offence charged in the information, was substained ; Brown v. State, 91 Wis. 245, 64 N. W. 749.
A statutory requirement that the magis trate shall, on preliminary examination, examine the witnesses to support the ac cusation, does not require that all of the witnesses known to the state shall be ex amined, but merely sufficient to justify the magistrate in binding over the accused for trial; Emery v. State, 92 Wis. 146, 65 N. W. 848.
United States commissioners holding pre liminary examinations have no judicial pow er, but only authority to determine whether there is probable cause to believe that the offence was committed; U. S. v. Hughes, 70 Fed. 972; and a district judge holding a preliminary examination has only, quoad hoc, the powers of a commissioner ; id.
Where an examining magistrate certified that he found probable cause to believe that an offence had been committed and had taken bail, it was sufficient to sustain an information without a positive certificate by the magistrate that an offence had been corn-• mated; People v. Whittemore, 102 Mich. 519, 61 N. W. 13.
• In England, when an accused person has been arrested, either without warrant or by .a justice's warrant, if he is charged with an offence for which he may be tried before a jury, the justice holds a prelimi nary inquiry to decide whether he ought or ought not to be sent for trial. The admis
sion of the public during those inquiries is a matter of discretion with the justice. The witnesses for the prosecution are ex amined under oath and may be cross-exam ined by the defendant or his counsel or solicitor. The evidence is taken down in writing Lind after the prosecution is closed, it is read in the hearing of the defendant and he is asked whether he has anything to say in answer to the charge, being first told that he is not required to speak but that whatever he does say will he taken down in writing and may be given in evidence against him on the trial. The defendant is then allowed to call witnesses to prove his innocence. He may examine these himself or by his counsel or solicitor, and they may be cross-examined by the prosecutor. The defeizdant may not be questioned nor may he give evidence on his own behalf, except in certain special cases. If he choose to give evidence on oath he is liable to be cross-examined by the prosecutor.
If a prima facie case is not made out the defendant is discharged. If the justices are of opinion that a case has been made out they send him to trial. Hearings may be adjourned upon reasonable grounds to a stated time and place, in which case the accused is either removed under custody or discharged on his own recognizance, with or without sureties, to appear at the ad journed hearing. The limit of time must not exceed eight days. If the accused be held for trial, the prosecutor and the wit nesses are bound by recognizance to ap pear and give evidence at the trial. The accused will not be released on bail when the charge is treason. In cases of felony and a large number of misdemeanors, the justice has a discretion in the matter. In case of misdemeanors not specially provid ed for, they have no power to refuse bail. Haycraft, Exec. Pow. in Rel. to Crime.
As to present French system, see JIIGE D'INSTRTJOTION.
See PRISONER.