I concur in the opinion of Mr. Justice EPHRAIM HANSON to the extent that the judgment of conviction of the defendant should be reversed, and that the cause should be remanded to the district court of Beaver county. I do not concur in the order that the district court should be directed to dismiss the cause. Neither do I concur in the statement that the district court "did not have power or authority to hear a mere misdemeanor." The district courts are courts of general jurisdiction and have jurisdiction to try all causes properly before them. It is clear that a public offense has been committed. It should not be dismissed without a proper trial upon merits. The question in the instant case is not one of jurisdiction of the subject-matter of the offense classified as misdemeanors; but it is one of procedure. The proper procedure not having been pursued to vest jurisdiction of the defendant in the district court to try her for the offense attempted to be charged, the cause should have been remanded to the justice's court either to try the defendant *Page 370 upon the offense which the complaint actually charged, or if the facts warranted to amend the complaint to charge the offense in such form and with such allegations as would be supported by the proof. State v. Florence, 79 Utah 200, 8 P.2d 621. If such allegations and proof charge and support a misdemeanor, the justice of the peace should proceed to try the cause; if the allegations charge a felony, and there is sufficient proof upon preliminary hearing, to satisfy the justice of the peace that a felony has been committed, and that there is probable cause to believe that the defendant charged committed it, it is the duty of the justice of the peace to hold the defendant under proper order to the district court.
I therefore concur in the concurring opinion of Mr. Justice ELIAS HANSEN that the cause should be remanded to the district court, with directions to that court to remand the cause to the justice's court in which the cause originated, with directions to proceed as the law and the facts may warrant.