dissenting. I am of the opinion that the judgment of the Common Pleas Court, reversing the Probate Court, should be affirmed for the reason that the affidavit upon which the information was filed by the prosecuting attorney in the P'robate Court, and upon which the prosecution was had, was signed and sworn to by the prosecutor himself.
The jurisdiction of the Probate Court in the prosecution of the offenses which are cognizable by the Probate Court is exercised upon information filed, and in most cases the information is filed by the prosecutor after a transcript of the proceedings had before a magistrate has been filed in the Probate Court.
Section 13443 authorizes the prosecuting attorney to file an information in the probate court without a preliminary hearing before an examining court, upon the proper affidavits being filed therein.
The policy of our law, as well as the modern *403rule in England, has always been antagonistic to the vesting of authority in the prosecuting attorney, or any other prosecuting officer who has been elected by the people to represent the state in the trial of offenses, to determine according to his own discretion who shall be prosecuted and then file the informations on his own initiative. This policy of our state is well defined in the case of Gates and Goodno v. State, 3 Ohio St., 293. This seems to be the general policy in this country.
I have searched diligently for authority from the courts of last resort, and have been able to find no authority vesting in a prosecuting officer of a state the power both to initiate by his own affidavit or complaint against an offender of the law, and also to file the information upon which such offender is to be prosecuted.
It has been said by our Supreme Court that where no case can be found to support a claim, that fact may be evidence that in the public estimation such claim is not maintainable. Dunlap v. Knapp, 14 Ohio St., 64, 72.
In the case of Flournoy v. State, 51 Tex. Crim. Rep., 29, 100 S. W., 151, the Texas court recognizes this same policy as the policy of that state. It was first announced in the case of Daniels v. State, 2 Tex. App., 353.
If it had been the purpose of our Legislature to permit the prosecution in the Probate Court to be initiated and the complaint filed by the prosecutor, it would have been necessary only to have provided that the information, duly sworn to, might be filed; but the statute provides that the information shall be filed only after proper affidavits have been filed. And by this I take it to *404mean the same affidavits by other persons who would be the affiants before the examining magistrate were the ease initiated there.
If the prosecuting attorney should happen to be the sole person having knowledge of the commission of the offense complained of, he could file his affidavit as a private citizen before an examining magistrate, and if the magistrate found probable cause the accused could then be bound over to the probate court, and, upon the filing of the transcript therein, the information could be filed and the case proceed as is contemplated by the statute.
That this is the policy of our state is to some extent borne out by the language used in Section 13442, Gleneral Code. Referring to the information to be filed by the prosecutor, it says: “An information shall not be filed by the prosecuting attorney for an offense not specified in the transcript from the docket of such justice or mayor.”
If the prosecutor is held to be authorized to file his own affidavit, the force of this language could be destroyed by the prosecutor merely filing his affidavit on information and belief obtained from the transcript, but defining an entirely different offense than the one specified in the transcript.
If there is no such policy, not only may the prosecuting attorney initiate a prosecution and prosecute it, but so may a justice or mayor file his own affidavit before himself and prosecute the case, for I find no prohibitory statute or decision.