State ex rel. Anderson v. Callahan

Fullerton, J. (concurring)

— I concur in the conclusion reached in the foregoing opinion, but I cannot concur in the reasoning by which the conclusion is reached. After a demurrer has been sustained to an *546indictment or information on grounds which, do not go to the merits of the accusation against the accused, I have no doubt of the power of the court to remand the accused to await the return of another indictment or the filing of another information. This is a just inference from the statutes; even if it is not among the inherent powers of the court. But the case in hand is not this. Here the prosecution was by information, and when the demurrer was sustained thereto the prosecuting attorney announced that he would stand on the information, and gave notice of appeal from the judgment of the court. This was a refusal to file a new information, and, in my opinion, the court had but one of two courses to pursue; it could either remand the defendant and appoint a special prosecutor to conduct his prosecution, or it could have discharged the defendant. The court did not adopt in full either of these alternatives; it remanded the defendant without providing a means by which he could speedily be brought to trial. In this I think the court erred, but it is an error in procedure only, and is to be corrected by some one of the means provided by statute for correcting errors in procedure. Habeas corpus, as I understand its governing principles, is not such a remedy, and I therefore concur in the conclusion that the defendant is not entitled to a discharge under the writ now before us.

Mitchell and Bridges, JJ., concur with Fullerton, J.