OPINION.
PER CURIAMOn the 20th day of August, 1914, the petitioner was arrested, charged with the murder of Lillian Towndrow, his wife, Judge Thomas D. Leib, presiding judge in the Eighth Judicial District, sat as the examining magistrate and heard the testimony introduced upon the application for bail. Upon the conclusion of the testimony, the court found, among other things, that a crime had been committed and that there was probable cause to believe the defendant committed the crime, and on the application for bail, reserved his ruling and took under advisement the question as to whether or not the said defendant was entitled, under the constitution and laws of this state, to bail, and, thereafter, on the 16th day of September, 1914, the said judge ordeled that defendant be admitted to bail in the sum of $15,000. This bail was given by the defendant in the form of a recognizance, denominated an appearance bond, with sureties as required by law, which was approved by the sheriff, and the defendant was released thereon. Thereafter, on the 7th day of December, which was the first day of the regular December, 1914, term of the district court of Colfax County, the petitioner and other defendants interested in other cases, interposed a challenge to the array of the grand jury, which had been summoned to appear on that date to serve for that term of court. This challenge was sustained by the court, whereupon the court directed the sheriff to take the petitioner into custody, and, also directed the district attorney to file in the district court an information against the petitioner, charging him with having killed and murdered the said Lillian Towndrow. The district attorney filed the information, which was supported by the oath of W. R. Hixenbaugh, upon information and belief only, however. Upon this information a warrant was issued, and it is upon this information and the warrant issued thereon, that petitioner is being detained in the custody of the sheriff and deprived of his liberty.
The attorneys for the petitioner and the Attorney General have filed in this court a written stipulation, which among other recitals and agreements, contains the following:
“The Attorney General admits that the warrant, copy of which is attached to the petition herein, and under which, the petitioner is held in restraint, is not a lawful process and is insufficient to justify petitioner’s detention, because the warrant was issued upon a complaint based on information and belief.”
1 In view of this admission by the'state, the application will be granted and petitioner will be discharged from the restraint under the warrant issued upon the information filed December 9th, 1914, without prejudice to any proceeding heretofore instituted, now, or hereafter to' be instituted' by the state touching the charge against the petitioner for the murder of Lillian Towndrow.