Decided 27 March, 1905.
On Motion for Rehearing.
Mr. Justioe Mooredelivered the opinion.
6. It is contended by defendant’s counsel, in their petition for a rehearing, that if it be conceded, as stated in the former opinion herein, that a district attorney in this State possesses the power, formerly exercised ex officio by the attorney general in England, of exhibiting informations for misdemeanors only, a district attorney in Oregon has no authority in that manner to charge a felony. The legal principle insisted upon challenges the power of the legislative assembly to confer upon the district attorney such authority. The only reason that can be assigned to support this point is that such a procedure is violative of the Fourteenth Amendment to the Constitution of the United States, in that it may result in the deprivation of life or liberty without due process of law. The Supreme Court of the United States, in construing this clause, has settled all controversy on the subject by holding that thé prosecution of a person for a felony by an information only constitutes due process of law: Hurtado v. California, 110 U. S. 516 (4 Sup. Ct. 292, 28 L. Ed. 232); Bolln v. Nebraska, 176 U. S. 83 (20 Sup. Ct. 287, 44 L. Ed. 382).
7. The similarity of power exercised ex officio under the rules of the common law by the attorney general of England, and that employed by a district attorney in this State, lies in the fact that the former was, and the latter, in the absence of legislation on the subject, is, authorized to perform the duties devolving upon him without leave of court. A district attorney may therefore, in his own discretion, file an information charging the commission of any crime committed or triable in the county for *263which he is elected or appointed. An examination of the rules of the common law, and an investigation of the mode of practice pursued by the attorney general of England thereunder, necessarily lead to the conclusion that a district attorney in this State, in the absence of any enactment on the subject, possesses the. same measure of power exercised by him, and hence is not, like the master of the crown office, obliged to secure leave of court before he can exercise his discretion, but, like such attorney general, he has authority to file informations charging the commission of misdemeanors. This is the limit to the analogy between the powers of these officers, but, to the extent of the similarity indicated, the ancient law is germane and governs, demonstrating that a district attorney in this State possesses plenary power to file informations without permission of court.
His authoritjr, however, so far as it relates to the filing of informations charging the commission of felonies, is not derived from the common law, but directly from the legislative assembly: B. & C. Comp. § 1258. The organic law of this State, in commanding the method to be pursued in securing jurors, is as follows: “The legislative assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors; and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. But the legislative assembly may modify or abolish grand juries”: Const. Or. Art. VII, § 18. The legislative assembly, exercising the power thus reserved, passed an act, which was approved February 17, 1899 (Laws 1899, p. 99), authorizing the district attorney of any judicial district in this State to file informations charging persons with the commission of any crimes defined and made punishable by the laws of Oregon that have been committed in the county where the information is- filed: B. & C. Comp. § 1258. The information specified shall be substantially in the form prescribed for an indictment (B. & C. Comp. § 1304), except that the words “district attorney” shall be used instead of the words “grand jury” .wherever the same occur: B. & C. Comp. § 1259. The information, when filed, shall be construed like, and deemed to be in all respects the same as, an indictment, and *264the same proceedings shall be. had, and with like effect, as in cases-where indictments are returned by a grand jury: B. & C. Comp. § 1260. Any person within this State can be compelled by subpoena to appear before a district attorney to testify concerning any crime inquired of by him: B. & C. Comp. § 1261. The name of each witness thus examined by the district attorney shall be inserted at the foot of or indorsed upon the information before it is filed: B. & C. Comp. § 1262.
A perusal of the act in question, the substance of which is hereinbefore stated, will show that it is in effect a modification of the grand jury system, whereby that inquisitorial body has, except when in the opinion of the court deemed advisable (B. & C. -Comp, §1264), been superseded by the district attorney, who can find informations only on the testimony of witnesses taken before him, which tends to show that a crime has been committed in the county, and that there is reasonable cause to believe that the person to be charged is connected therewith and can upon a trial therefor be convicted thereof. The change in the manner of initiating criminal actions is a reasonable exercise by the. legislative assembly of the power reserved by the people in the fundamental law, and because their representatives, when assembled, considered it appropriate to designate the district attorney as the proper person formally to charge the commission of crimes, his right to employ the authority conferred is as well founded as if the control in such matters had been delegated to any other person or number of persons.
8. “An information,” as defined by the legislative assembly in 1864, “is-the allegation or statement made before a magistrate, and verified by the oath of the party making it, that a person has been guilty of some designated crime”: B. & C. Comp. § 1581. In modifying the grand jury system, the legislative assembly in 1899 designated the formal charge of the commission of a crime made by the district attorney as an “information,” but the accusation in writing might have been indicated as well by any other name. The word “information,” as defined in the statute first enacted, refers to the charge made before a magistrate, and in the last act to the 'complaint made by a district attorney. We do not think the legislative assembly, by desig*265nating the formal charge last referred to as an “information,” thereby intended that the word used should be understood as meaning a verified statement, and for this reason resort must be had to Section 9 of the Bill of Eights of this State, and not to the statute defining the word, to determine whether or not the information filed by the district attorney should be verified by an oath indorsed thereon or specially made with reference thereto. The affidavits required to support the probable cause were originally sworn in the court for the express purpose of praj'ing an information upon them: King v. Jolliffe, 4 Durn. & E. 285. As at common law the attorney general in England ex officio exhibited informations for misdemeanors without leave of court; no necessity existed for the, making of an affidavit to support the probable cause, except by the master of the crown office. This was the rule of the common law as announced in King v. Joliffe, 4 Durn. & E. 285, when the Fourth Amendment to the Constitution of the United States was ratified, and also when Section 9 of the Bill of Eights of this State was adopted, commanding that no warrant should be issued but upon probable cause, supported by oath or affirmation. A reasonable interpretation of the clause of the organic law of this State, to which attention is called, when read in connection with the rules of the common law, leads to the conclusion that an indictment found and returned by a grand jury need not be specially verified by an oath of any person, and that the same rule also applies to 'informations exhibited without leave of court, which are in effect indictments found and returned by the district attorney. Where, however, leave of court is required as a condition precedent to the filing of an information, it would seem that the probable cause must be supported by an oath or affirmation before any warrant can be issued, unless the accused has had or waived a preliminary examination: Ratcliff v. People, 22 Colo. 75 (43 Pac. 553); Holt v. People, 23 Colo. 1 (45 Pac. 374); Noble v. People, 23 Colo. 9 (45 Pac. 376). As a district attorney in this State is not required to secure leave of court before he can file an information charging the commission of a crime, and as he has in effect been subrogated in lieu of the grand jurors in this respect, so that an information filed by him is tantamount to an *266indictment returned by the grand jury, we think his oath of office, though promissory, is equivalent to the oaths of the grand jurors which are assertory, and each sufficiently supports the probable cause, though not indorsed thereon or specially connected therewith.
9. It is insisted by defendant’s counsel that the bill of exceptions fails to disclose the person who subscribed the district attorney’s name to the information. We think this question is unimportant, for the district attornejr, having assisted -in prosecuting the defendant, and being present when he was arraigned and secured an extension of time within which to plead, thereby adopted the signature appended to the written accusation, and ratifie.d the act of the person who subscribed his name thereto: State v. Belding, 43 Or. 95 (71 Pac. 330).
iThe bill of exceptions shows that the district attorney was absent from Multnomah County June 15, 1904, the day the information was filed, at which time it also appears that a bench warrant for the arrest of the. defendant was “ordered” to be issued on the motion of a deputy of the district attorney. Based on this condition of the transcript, it is contended by defendant’s counsel that if ratification by the district attorney gave validity to the information, which they deny, such confirmation did not occur until after the bench warrant was executed, and -hence it was issued without authority. The court’s order that a bench warrant be issued is in effect a judgment awarding the -relief demanded by the deputy district attorney when the information was filed. The. issuance of the warrant in pursuance of such judgment is a ministerial act performed by the clerk of the court, usually upon the request of the officer entitled thereto. The bill of exceptions shows that on June 16, 1904, the district attorney was in the court when the defendant first .appeared thérein, but, no copy of the warrant being set out in the record, it does not affirmatively appear that the capias was not “issued” at the request of the district attorney himself before he took any part in the action in open court, thereby ratifying the finding of the information, and verifying it with his official oath, prior to the issuance of the bench warrant. The defendant had been arrested for the commission of the crime of which he was con*267victed, and was confined in jail therefor when the information was filed. His incarceration, therefore, rendered the immediate issuance of a bench warrant unnecessary, and the reasonable probabilities strengthen the conclusion reached, that the capias was not issued by the clerk until June 16, 1904, and then, possibly, upon the prsecipe of the district attorney.
It follows from these considerations that the petition for a rehearing is denied. Affirmed: Rehearing Denied.