ON REHEARING.
FLYNN, District Judge.On petition of the Attorney-General a rehearing was granted. It is urged that this court erred in holding: (1) That a plea of former acquittal presents an issue of fact which must be tried to a jury; (2) That where a plea of former acquittal has been entered it is *154error to instruct the jury to find against the defendant on such plea; (3) That the' purity of the verdict in this case has been affected by the alleged misconduct of the prosecuting attorney.
I am in accord with the original opinion of the court,' except in so far as it treats of the plea of former acquittal and the action of the trial court thereon. The trial court refused to admit in evidence the clerk’s minute entry of January 9, 1918, which erroneously failed to state the true order made at that time, as shown by the nunc pro tunc order subsequently made. The trial court also refused to give appellant’s requested instructions relating to the plea of former acquittal and instructed the jury to find against appellant on this plea* These rulings are assigned as error and will be considered together after disposing of other points.
Since the reargument was not limited to the questions presented in the petition for rehearing, I find it necessary to discuss other errors assigned by appellant. Appellant objected to any evidence on the ground that there was no valid information filed and hence that the court lacked jurisdiction. He contends that the trial court had no jurisdiction to order a resubmission to the committing magistrate with the instructions shown in the nunc pro tunc order, but that its authority is limited to sending the case back to the magistrate for. a new preliminary hearing. The justice’s docket shows that after examination of witnesses, the justice found that a public offense had been committed, without stating what offense, and that there was sufficient cause to believe defendant guilty thereof and that it was ordered that defendant be held to answer to the district court.
On granting the motion to set aside the information, the trial court referred the case back to the magistrate with instructions to make upon the depositions a written order of commitment, showing for what offense the defendant was committed and also with instructions to have the answers read back to the witnesses and have the same subscribed by them. This court has held that the certificate of a committing magistrate to the depositions taken before him at a *155preliminary hearing may be amended. (State v. McGann, 8 Ida. 40, 66 Pac. 823.)
Where the record shows that a preliminary examination has been held, that a public offense has been committed and that there is probable cause to believe the defendant guilty thereof, we see no reason why the trial court, on setting aside an information, may not order a resubmission to the committing magistrate for the purpose of correcting technical errors or informalities without the necessity of holding another preliminary hearing.
The order of resubmission made by the trial court indicates the grounds for setting aside the first information and wherein the commitment was irregular, and we hold that it was properly made. (People v. Thompson, 84 Cal. 598, 24 Pac. 384.)
The next question is whether the action of the trial court in setting aside the information amounted to an acquittal so as to afford a basis for appellant’s plea of former acquittal. That an order setting aside an information is not a ■ bar to a prosecution for the same offense is plainly indicated by C. S., sec. 8867, which so states. This has been held true under statutes identical with ours, even where no order of resubmission has been made, such as contemplated by C. S., secs. 8865 and 8866. (People v. Ammerman, 118 Cal. 23, 50 Pac. 15; State v. Springer, 40 Utah, 471, 121 Pac. 976.)
But, as we have found that an order of resubmission was made, it will not be necessary to pass on what would be the result if such order had not been made. Clearly, under the facts and the law, there was no basis for the plea of former acquittal.
Nevertheless, defendant claims that, having entered such plea, he is entitled to have the verdict of the jury thereon. Notwithstanding that C. S., see. 8903, provides that an issue of fact arises on a plea of former conviction or acquittal, it is clear from reason and from the authorities that whether the plea raises an issue of law or fact depends on the circumstances of the case and should be 1 determined by the rules and principles applicable to issues generally. (8 *156R. C. L., p. 120, sec. 92; State v. Thompson (Utah), 199; Pac. 161; State v. Springer (Utah), snpra; State v. Healy, 136 Minn. 264, 161 N. W. 590; People v. Ammerman, supra; People v. Wilkinson, 30 Cal. App. 473, 158 Pac. 1067.)
Suppose that a defendant should interpose such plea with absolutely no basis therefor, or should offer no evidence of any prior prosecution, can it be reasonably contended that he would be entitled to have the jury pass on such plea? We think not.
Some courts have gone so far as to hold that the burden of establishing such plea is on the -defendant. (State v. Healy, supra; Ex parte Martin, 34 Cal. App. Dec. 758, 197 Pac. 365.)
While we do not so' hold, we believe that it is certainly incumbent on a defendant, relying on a plea of former jeopardy or acquittal or conviction, to adduce some evidence m support thereof before he is entitled to have the jury pass thereon. We hold that where the issue raised by a plea of former acquittal involves solely a question of law, as It does in this case, and such question is -determined adversely to defendant, the trial court may properly withdraw the question from the consideration of the jury or it may instruct the jury to find against defendant on the plea of former acquittal. (People v. Ammerman, supra; State v. Springer, supra; State v. Healy, supra; People v. Wilkinson, supra.)
The case of State v. Crawford, 32 Ida. 165, 179 Pac. 511, merely holds that there is no authority in this state for the interposition of a demurrer to the plea of once in jeopardy and does not conflict with this opinion. In the case of State v. Gutke, 25 Ida. 737, 139 Pac. 346, there was ample evidence to sustain the plea of former acquittal and the failure of the jury to return a verdict thereon was held error. The latter case is certainly distinguishable from the one at bar, in which there is no evidence to sustain the plea.
For the other reasons stated in the original opinion, the judgment of the lower court should be reversed and the cause remanded, with instructions to grant appellant a new trial.
Budge and Dunn, JJ., concur.