I concur in the order discharging the writ, but am unable to concur in the views expressed by the majority. Our constitution provides that “offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, or by indictment with or without such examination and commitment, as may be prescribed by law.” (Const., sec. 8, art. I.) It was for a long time claimed by many that the proceeding by information was in conflict with the provision of the fourteenth amendment of the constitution of the United States, that no state should deprive any person of liberty without “ due process of law.” The question was finally settled by the supreme court of the United States in the Hurtado case. (110 U. S. 516.) It was there held that a proceeding under the provisions of our constitution and Penal Code, resulting in a conviction of murder, was not in violation of any provision of the fourteenth amendment, it appearing that the party convicted had been examined before a magistrate, who, after the accused had been heard (with the aid of counsel and the right of cross-examination of witnesses, whose testimony was reduced to writing), had filed the proper certificate that the offense described in the complaint had been committed, and that there was sufficient cause to believe the accused guilty thereof, and it appearing that the offense charged in the information was the same as that set forth in the affidavits, and for which the accused was committed. After full consideration of the opinion in that case, and the dissenting opinion of Mr. Justice Harlan, I am satisfied that the supreme court of the United States would hold, in a case like the one before us, that the words “due process of law” neces*646sarily require that the accused, before being put, upon trial under an information charging him with felony, must have had the opportunity to be heard, with the aid of counsel and the right of cross-examination, before the committing magistrate examining into the same charge-No other construction of the provision of our constitution, that the information can be filed only “ after examination and commitment by a magistrate,” can afford any protection to a person accused of a felony. In People v. Parker, ante, p. 91, I was constrained to concur in the opinion of Mr. Justice Garoutte, because the question had been settled by the decisions of our own court. A review of all the cases, however, will show that they are not entirely consistent; thus while it is held in People v. Lee Ah Chuck, 66 Cal. 662, that the judgment of the district attorney must be exercised on the testimony found in the depositions, and that he may proceed by information against the defendant for any offense appearing by the depositions, regardless of the judgment of the magistrate, thus exercising judicial functions, it is held in Ex parte Sternes, 82 Cal. 248, that the district attorney is a mere ministerial officer, and can exercise no judicial functions whatever, so far as an inquiry into the question of probable cause is concerned. If he is a ministerial officer for one purpose, he is for the other, and it is difficult to see why he has not as much power to disregard the opinion of the magistrate and inquire into the question of probable cause, as he has to determine what offense the evidence shows to have been committed. It is said in People v. Vierra, 67 Cal. 231, that “it would he a strange requirement which permitted the justice to determine the offense for which the defendant should be prosecuted, instead of the district attorney, who was selected on account of his learning in the law, and especially charged with duties requiring an acquaintance with' the criminal law.” But it may be that the framers of the constitution thought that it would be safer to intrust the liberty of the citizen and the rights of the people to a judicial officer, selected for the exercise of judicial *647functions, than it would be to intrust them to an attorney, employed expressly to prosecute persons charged with crime. If the framers of the constitution had intended the discretion of the district attorney to be superadded to that of the committing magistrate, it would have been easy to say so.
Under the construction wdiich is given to the provisions of section 1, article VIII., a person charged with grand larceny, and committed by the magistrate for that offense, may be informed against and tried upon that charge, and then, without any further preliminary hearing, upon a charge of robbery, then upon a charge of burglary, then upon a charge of obtaining property under false pretenses, then upon a charge of embezzlement, if it appear from the depositions on the examination upon the charge of grand larceny that witnesses have said anything -which would authorize the district attorney to say there had been shown reasonable cause to believe that the defendant had at some time committed such offenses. A person charged with robbery, after an examination upon that charge alone, may be prosecuted without any preliminary hearing, upon an information for an assault with intent to commit murder, or any other offense, although the question as to whether such offense had been committed by the defendant never arose in the mind of anybody until after he was acquitted on the charge of robbery. Such, surely, cannot be “due process of law.” A person charged with crime has no right to be heard before the grand jury; that is a tribunal selected from the people, and consisting “ of so large a body as to be supposed to be beyond the influence of prejudice or passion, and whose judgment ” has for centuries been held conclusive. While the people have provided an alternative of a more speedy character, they have carefully provided that before a man can be put upon his trial, there must be an investigation before a judicial officer, and the accused must be given the right to be heard by himself and his witnesses, with the aid of counsel. Of what avail is this right, if, after a hearing *648and a determination by the judicial officer selected for that purpose, a mere ministerial officer—and he one employed and paid to prosecute persons charged with crime, and one who we all know is often over-zealous in his efforts to secure conviction — can put a man upon trial for an offense which he has never had an opportunity to meet? (Of course there has been no attempt to unduly press this petitioner, and I refer simply to what 'may occur.) No one is more desirous of adhering to our own decisions than myself, and if it were a case involving a construction upon which property rights may have been built up, I should not depart from prior decisions; but in a case like this, involving the construction of a provision of the constitution which is intended to preserve the liberty of the citizen, I do not feel bound by what may have been said in prior cases. Furthermore, as this is a question which must ultimately be decided by the supreme court of the United States, it is our duty to follow the decisions of that court as we understand them.
Another point: section 809 of the Penal Code expressly provides that “ when a defendant has been examined and committed, .... it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court . . \ . an information charging the defendant with such offense.” If it be true that the district attorney may, after a trial upon the charge for which the defendant has been committed, file an information and put him upon trial for another offense, I think his authority to do so should affirmatively appear.