(dissenting): I concur in all that is said in the dissenting opinion of the chief justice, hence other points only are mentioned here. The opinion, erroneous in its result as I believe it to be, may settle the proper procedure on the hearing of a plea in abatement. Certainly the state should join issues of law or fact on such a plea by a demurrer, answer, or other appropriate pleading, and the issues thus joined should be heard and determined. The contentious refusal of counsel for the state to assist in framing such issues and to proceed orderly to have them determined resulted in *366the lengthy colloquy among counsel and the court which confuses the record. Certainly a finding that one “may be guilty” of a crime is not tantamount to a finding that there “is probable cause” to believe him guilty.
The records of justice of the peace courts, in common with the records of all courts, may be amended to speak the truth. The state called the justice of the peace as a witness. His testimony convinced the trial court that the judgment of the justice of the peace, at the preliminary hearing, was that felony had been committed and that there was probable cause to believe the defendant committed the crime. There is an abundance of evidence in his testimony to justify the court’s final construction to the testimony. He said, “according to the evidence of the girl, the defendant was guilty of the crime.” He found a crime had been committed and he thought it was not for him to say any more — it was above his jurisdiction and would have to go to the district court. Clearly he was not conscious of, or clearly distinguishing, the different meanings proper to apply to the term “may be guilty,” or “that there is probable cause for believing defendant to be guilty.” It is true that at one time during the long colloquy the court stated an analysis of the testimony of the witness which left the court in doubt. But later and after further argument and consideration the court found from the testimony of the witness that he had found not only that a felony had been committed, but that there was probable cause to believe the defendant to be guilty. That was the ultimate finding of the court. This justified an order of the court correcting, or treating as corrected, the record of the justice of the peace. The matter heard by the court was one proper for it to hear. It was for the trial court to determine what the evidence proved. We are concerned with the ultimate finding of the court on that question only to see that there was ample, competent testimony to sustain the finding ultimately made. Our decision should not be made upon an analysis of the testimony made by the court at some time during thé long colloquy between court and counsel. We should base our decision on the final conclusion of the court reached after the conclusion of all the testimony of the witness, the argument of counsel and the consideration of the matter by the court. If that were done the judgment of the trial court would be affirmed.