Dissenting. — I cannot concur in the majority opinion.
I dissent, first, because subdivision 5 of 0. S., see. 8870, maltes the bar of the statute of limitations, which is the only ground urged by appellant, a ground of demurrer in such a case as this, and under C. S., sec. 8878, if this objection is not raised by demurrer it is waived. There was no demurrer on this ground and the record shows no suggestion of this matter to the court below. It is therefore waived.
The majority opinion cites the case of State v. Steensland, 33 Ida. 529, 13 A. L. R. 1442, 195 Pac. 1080, for the purpose of showing, as I understand it, that even though it appeared on the face of the information that the prosecution was barred, it was not necessary for appellant to demur thereto in order to avoid waiving that objection. I have not understood that case to go so far. However, if that is a correct interpretation of it on that point then I am in favor of overruling it and giving effect to G. S., secs. 8870 and 8878. While this court has not heretofore expressly ruled on subdivision 5 of see. 8870 it has ruled on other portions of this section and has held parties to have waived objections to informations and indictments by failure to demur. (State v. Bilboa, 33 Ida. 128, 190 Pac. 248; People v. Nash, 1 Ida. 206; State v. Hinckley, 4 Ida. 490, 42 Pac. 510.)
I dissent on the further ground that the majority opinion, in my judgment, makes a misapplication of O. S., sec. 8703, limiting the time for filing an indictment or information, and also a misapplication of O. S., sec. 8874. These sections read as follows:
Sec. 8703. “An indictment for any misdemeanor must be found within one year after its commission.”
Sec. 8874. “If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, *112being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or another grand jury.”
“Indictment” is defined by C. S., sec. 8791, as follows:
“An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.”
No definition of “information” is given by our statutes, but it has a meaning well understood as that term is used in the constitution and statutes of this state with reference to criminal prosecutions.
Defining “information” in the sense in which it is here being discussed, Bouvier’s Law Dictionary, vol. 2, p. 1563, Rawle’s Third Rev., says:
“An accusation in the nature of an indictment from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. 1 Bish. Or. Proc., sec. 141.
“It differs in no respect from an indictment in its form and substance, except that it is filed at the mere discretion of the proper law officer of the government, ex officio, without the intervention of a grand jury. 4 Bla. Com. 308.”
Under our practice the information filed by the prosecuting, attorney in the district court is not required to be sworn to.
O. S., sec. 8874, was enacted long before the method of prosecution by information was adopted, when prosecutions for misdemeanors as well as felonies could be brought in the district court only by indictment. After the change to prosecution by information was authorized by the constitution (art. 1, sec. 8) the legislature, as far as it was practicable to do so by a general statute, made applicable to informa-tions the law regarding indictments. This was done by O. S., sec. 8812, which reads as follows:
“The provisions of this code in relation to indictments, and a.11 other provisions of law applying to prosecutions upon indictments, to writs and process therein, and *113the issuing and service thereof, to motions, pleadings, trials and punishments, or the execution of any sentence, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may he, apply to informations and all prosecutions and proceedings thereon.”
It is manifest that by C. S., sec. 8812, it was not the intention of the legislature to try to force prosecutions by information to conform in every detail to the provisions governing indictments. The statute recognizes that in some respects they may not be applicable, for it says that the provisions of the law governing indictments shall apply “as near as may be.” This clearly leaves the court, in a situation not met by a specific provision, to adopt a procedure in accordance with C. S., sec. 6511, which reads as follows:
“When jurisdiction is, by this code, or by any other statute, conferred on a court or judicial officer all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction if the course of proceedings be not specially pointed out by this code, or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” Fox v. Flynn, 27 Ida. 580, 588, 150 Pac. 44.)
This section is simply declaratory of the common law. (Golden Gate C. H. M. Co. v. Superior Court, 65 Cal. 187, 3 Pac. 628.)
In this case there was filed in the district court 'of Ada county on January 29, 1917, which was within a year of the commission of the offense, an information charging appellant with the identical offense with which he stands charged to-day, and there has not been a moment of time from that day to this when that charge was not standing against him.
That information was sufficient in substance, but was held by this court to be objectionable in form in that it charged three offenses. The judgment of conviction was reversed by this court because the trial court erred in overruling appel*114lant’s demurrer on that ground, holding also that this error would have been cured if the trial court had sustained appellant’s motion to require the state to elect. (State v. Bilboa, 33 Ida. 128, 190 Pac. 248.) Just how serious this court considered the defect in that information may be determined from the following language used in that case:
“Duplicity in criminal pleading is an irregularity, and even in the trial of a case in the district court an objection that the indictment or information charges more than one offense may be waived.
“Nor is it fatal that the magistrate has found the offenses specified in the complaint to have been committed and has held the accused to answer for all. Should the prosecuting attorney afterward file one information charging all the offenses for which the accused had been held to answer, the accused is not deprived of any substantial right. Upon arraignment he has ample opportunity to object to the information by demurrer, and may, if he chooses, require the state to elect upon which of the charges he shall be prosecuted.”
On the going down of the remittitur the court sustained the demurrer and directed the prosecuting attorney to file a new information, which was done long after the expiration of one year from the commission of the offense.
Let it be admitted, though I think it is not true, that if this prosecution had been by indictment the court would have been powerless to permit the dismissal of the two charges improperly included in the indictment and would have been compelled to submit the matter to another grand jury, still I can find no warrant in the statutes for the conclusion that it was equally powerless in dealing with this information. It is admitted by appellant that if the court had directed the prosecuting attorney to elect which one of the three charges he would prosecute and he had refrained from rewriting the charge and filing another paper, appellant would now have no reason to complain and his conviction would stand. It cannot be denied, I think, that the court could have stated to the prosecuting attorney that he might amend the information, since the defect was one of form and *115not of substance, a mere irregularity. (31 O. J., and the eases cited under note 86, page 826.) If he had then amended he could have done so by striking out or dismissing the two charges upon which he did not intend to prosecute, or he might have filed another paper upon which was written word for word and letter for letter the very charge which would have been left by electing, or striking out, or dismissing, as suggested above. He did file just such other paper, identical in every respect with the former one as to this particular charge, which was simply an amended information, relating back to the date of the filing of the original information within a year of the commission of the offense.
I think the majority are clearly in error in holding that the information had been quashed and was dead. It is certainly a novel holding that the sustaining of a demurrer based upon a defect of form, and not of substance, one that is a mere irregularity, not denying a substantial right of appellant, sets aside and nullifies the information. If there is no procedure in' case of indictment that could have been adopted except to resubmit the case to another grand jury, I can find nothing in our law that compels the trial court to adopt the analogous course with an information, which would be to require the prosecuting attorney to go back and hold another examination. In my opinion C. S., see. 8874, has no application to such a situation as confronted the trial court, since there is no procedure under the law governing indictments to fit the situation with which the trial court was required to deal. Here was a condition that required only that the information be amended. I can find nothing in C. S., sec. 8812, that forbade the court to do the thing it did, viz.: to permit the information to be amended to comply with the ruling of the supreme court. No proceeding designated by statute has been pointed out that the court should have followed. Surely the law did not require the court to resubmit this case when the defect was one that could be and was corrected instanter by amendment. In the absence of an express provision of statute the court exercised the *116authority conferred by 0. S., sec. 6511, supra, which was the course pointed out by reason and justice.
Of course, the prosecution under the former information was barred until the defect complained of was corrected. Appellant had a right to have the information limited to onfy one offense, even though this was not a substantial defect, because he had made timely objection by demurrer.
It is contended that the information filed on September 20, 1920, was not an amendment of the original information. If the same things were done to a complaint in a civil action that were done in the case of this information we would have an amended complaint. Here we have the same accusation in the same words, but with two causes of action that were in the former information omitted. If this is not an amended information I fail to see how one could be drawn. Whether we call the procedure one of election or amendment by striking out or by filing an amended pleading, the substantial rights of the appellant were in no sense prejudiced.
It should be borne in mind that the very essence of the “indictment” or “information” is the accusation of crime, and not the particular paper upon which the accusation is written. Here we have the same accusation that was first laid against the appellant within a year of the time when he committed the offense. There has been no change in it since it was made seven years ago. Two others that accompanied it in the beginning have disappeared under his objection, but this charge remains just as it was originally made. “In construing the statute we are not to look so much at the mere verbiage as to the plain and obvious meaning of the law.” (State ex rel. v. Primm, 61 Mo. 166.)
I think sec. 8703 means that a prosecution for a misdemeanor shall not only have begun within a year, but that it shall have been carried to the point where “an” indictment or information therefor is filed in the district court. It does not mean that “the” indictment or information, that is, the particular paper on which the charge is written, must be filed within a year of the commission of the offense. The accusation being the same as originally made against *117appellant, the “information” is the same, notwithstanding it is written on another paper and filed more than a year after the commission of the offense. For the purpose of this discussion I have assumed that this statute means an indictment or information that charges a public offense and is sufficient to support a verdict and judgment of conviction, since there is no contention here that the information is insufficient in that respect.
C. S., sec. 8703, was enacted for the purpose of compelling diligence on the part of the prosecution and for the purpose of protecting persons from the unfairness of stale charges. It requires the charge of a misdemeanor, if it is to be prosecuted, to reach the district court within a year of the commission of the offense. This is all that statute requires. Passed in 1864, twenty-six years before prosecution by information was authorized, it is not possible that the legislature had in mind a construction that would prevent the filing of an amended information to correct a mere irregularity after the period of limitation had run.
The majority opinion relies upon People v. Ayhens, 85 Cal. 86, 24 Pac. 635, and State v. Disbrow, 130 Iowa, 19, 8 Ann. Cas. 190, 106 N. W. 266. I think neither of these eases is an authority in the case at bar. There is a clear distinction to be noted between the eases of People v. Ayhens, supra, and this case. In that case more than a year had elapsed since the commission of the offense and no information had been filed in the superior court. Clearly the action was barred.
From the following language used by the Iowa supreme court in State v. Disbrow, I think we are justified in the belief that the decision in that case would probably have been different if the original indictment had been, as the information is in this case, one that would sustain a conviction. In reversing the judgment there the court said:
“It seems to us a reasonable and just proposition that, in the absence of any statute saving such right to the state, the running of the statute of limitations ought not to be interrupted or suspended by the return and pendency of an indictment upon which no valid conviction or judgment can *118be founded. Such an indictment is no' indictment. It is a nullity, and, while it may serve as authority for the trial court to continue the defendant in custody and cause a resubmission of the case to the grand jury, such order is in effect the mere direction that the criginal inquiry shall be resumed as if the defective indictment had never been voted or returned into court. It is no more than a restoration of the ease to the status it occupied at the time it was originally submitted. The grandjury takes it up anew, and may present or ignore the bill, without any reference whatever to the fact that one indictment has been presented and set aside. ’ ’
The serious consequences that may follow a certain construction of a statute do not constitute a ground for refusing to follow its plain provisions, but they may well be considered in determining whether the legislature intended a construction which would produce such a result. It is of no great consequence that in this case the reversal of the judgment releases a lawbreaker who has been twice convicted and of whose guilt there is no shadow of doubt, but the rule laid down is likely to operate unfairly to the advantage of the criminally inclined and to the disadvantage of the state in the prosecution of persons guilty of grave felonies. In my judgment the holding is clearly contrary to 0. S., sec. 9084, which says that “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
I think the judgment should be affirmed.