(dissenting in part): The judgment on the first and third counts should be set aside, and the judgment on the second count — identical with the charge on which alone defendant was arrested, given a preliminary examination, and bound over — should be affirmed.
The Handrub case relied on to- justify the curious maneuvers- attendant on this trial is not in point. In the Handrub case the justice was permitted to amend his transcript “to make it speak the truth.” There is no pretense here that the transcript did not speak the truth. And since it contained neither defect, ambiguity nor mistake, I doubt whether the testimony of the justice was competent, but if it was it shows that, as originally prepared, the transcript did speak the truth, and the amendment made by the justice, virtually under constraint, made the recitals of the transcript less accurate— less true — than before it was tampered with to furnish a colorable basis to defeat the plea in abatement. (See, also, State v. Durein, 65 Kan. 700, syl. ¶ 2, 70 Pac. 601.)
The law on this subject is so simple that there is no excuse for courts or prosecuting attorneys to stumble over it. In fine, it is this: Although a defendant is arrested on the charge of having committed but one offense, the justice may bind him over to answer for as many crimes as the evidence adduced at the preliminary examination shows the accused to be probably guilty of. (State v. Fields, 70 Kan. 391, and citations, 78 Pac. 833.) But that matter is left to the unconstrained discretion of the justice. It is not left to the discretion of the prosecuting attorney. The justice does the binding over, not the county attorney, nór yet the district judge— unless the latter for the time being is serving as an examining magistrate under the statute. (R. S. 62-601, 62-201; and see Hancock v. Nye, 118 Kan. 384, 388, 234 Pac. 945.)
*192In serving as an examining magistrate, a justice of the peace performs substantially the same function as a. grand jury, and it would certainly compel a smile if it were suggested that a nisi prius court might solemnly grant permission to a grand jury to amend its indictment charging one felony so as to make it charge three distinct and independent felonies.
In State v. Spaulding, 24 Kan. 1, one of our early cases still frequently cited and quoted, the defendant was bound over to answer for the offense of embezzlement. The information filed against him included seven counts, but one was nollied, and his .special plea that he had been given no preliminary examination on any charge except the one stated in the first count was overruled and this ruling was assigned as error. This court said:
“In reference to these counts, it will be noticed that they charge the embezzlement of the same money, at the same time and as the property of the same party. . . . It is the same act — the same wrong — which is complained of in each count. . . .
“Now, in these cases, it is not necessary that a separate preliminary examination be had for each count. . . . Now, if six separate offenses are charged in these six counts, the objection was well taken; but, if only one offense, then, though that offense may be charged in different forms in different counts, it was not well taken; ... In such case, the warrant seems to be the basis of the proceeding before the examining magistrate, and the fullness of statement required in a criminal pleading is seldom found, and not to be expected, in a warrant. It will be remembered that these preliminary proceedings are generally had before justices of the peace — officers not learned in the law — and if the same fullness and precision, the same precautions against all the contingencies of the testimony, were required there as in the information or indictment, justice would be often delayed and defeated. All that can be required is that there shall be a single statement, containing the substantial facts of the offense charged, and then the prosecutor, in preparing the information, may use many counts, varying in them the formal and nonessential matters of the crime. He [the county attorney] may not add a new offense. To larceny he may not add robbery; nor to murder, arson. Neither may he add to the larceny of one piece of property, the larceny of another. He may not substitute one offense for another.” (pp. 3, 4.)
And so here, the county attorney might have charged the defendant with the offense for the commission of which he was arrested and bound over in as many different counts — in as many different ways — as the exigencies of the case and the possibilities of the proof might seem to justify, but as was said by Justice Brewer in the Spaulding case and by Justice Burch in the Fields case, the prosecuting attorney may not incorporate in the information “a new of*193fense,” “a separate and independent offense” not covered by a fair interpretation of the recitals of the justice’s transcript.
In State v. Goetz, 65 Kan. 125, 69 Pac. 187, where the defendant was haled before an examining magistrate on a charge of assault with intent to kill, but the magistrate bound him over only to answer for another offense disclosed in the course of the preliminary examination, that of assault and batteiy, the county attorney disregarded the failure of the justice to bind defendant over on the graver charge and filed an information charging defendant with such felony nevertheless. Defendant was convicted and appealed. This court reversed the judgment, saying:
“While one object of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him, it is also a step, and a necessary step, in the proceeding that leads up to his trial in the district court. He may not be put upon his trial without the finding of the examining magistrate that there is probable cause for believing that he is guilty of the crime charged, and until a preliminary examination has ripened into such a finding and a consequent binding over to the district court, the county attorney is not authorized to file an information against him. ‘The party accused has a right as a preliminary examination and a finding of probable cause, before he can be placed upon his final trial.’ (The State v. Montgomery, 8 Kan. 355.) The defendants’ plea in abatement ought to have been sustained, and the defendants not put upon trial as they were.” (p. 127.)
If a reversal of the judgment of conviction on counts one and three would suffer the defendant to escape wholly unwhipped of justice, I might feel impelled to let the judgment stand notwithstanding the patent errors which it contains. But the unimpeached and unimpeachable verdict, judgment, and sentence based on count two will satisfy the demands of justice against this defendant; and I see no reason to befog the simple provisions of the code prescribed for bringing criminals to the bar of justice, such as will necessarily result from the decision in this case.
I therefore dissent from that part of the judgment which pertains to defendant’s conviction and sentence under counts one and three.
Burch and Harvey, JJ., join in this dissent.