I concur. I feel constrained, however, to add a few words respecting what is said by Mr. Justice THUEMAN concerning the majority opinion in the case of State v. Sheffield, 45 Utah, 426, 146 Pac. 306.
That decision merely follows the statute which declares that in offenses like the one there in question the alleged date is not material. It may well be that at the preliminary hearing the state may call one of several witnesses only. Such witness may be confused or mistaken respecting the precise date, and hence may state the wrong date. The erroneous date, therefore, may be the one that is stated in the informa*630tion which is filed in the district court. In view, however, that the date is immaterial, the state, when the case comes on for trial, may prove the correct date on which the offense was actually committed. To do that has become elementary. Under such circumstances the defendant may not, as a matter of defense, prove that the witness or witnesses at the preliminary hearing testified to a different date. He may, no doubt, do that to affect the credibility of the witnesses, but not as a substantive defense. If, therefore, he desires to insist upon the fact that he has not had a preliminary .hearing for the transaction or offense the state is proceeding to establish by its evidence, the proper, and the only proper, procedure is to ask leave to withdraw his plea of not guilty, and, when that is done, to interpose his special plea to quash the information upon the ground that he has not had nor waived a preliminary hearing for the transaction or offense which the state is seeking to establish. This is so because such a plea is preliminary, and must be interposed before proceeding to the trial on the merits. Moreover, such a plea is addressed to, and must be determined by, the court before proceeding with the trial, and is never a matter for the jury to pass on.
Let us assume a case where the defendant during the progress of the trial claims that the state is proceeding to try him for an offense for which he has neither had nor waived a preliminary hearing and the state disputes his contention. Is the question to be submitted to the jury? Suppose it,is; what will their verdict be? Gan a jury in a criminal case pass on any other plea than a plea in bar or a plea of not guilty? Will the jury thus return a verdict of not guilty merely because a preliminary matter, however important, has been omitted? Merely to state the proposition shows that the objection that the accused has not had a preliminary hearing must be made in some other way than merely to object to the evidence at the trial.
It must be manifest to all that a plea that a preliminary hearing has not been had or waived does not support the plea of not guilty, and hence, so long as the latter plea stands and the trial on the merits proceeds, such a claim, or evi-*631deuce in support thereof, is entirely out of place. If the state attempts to produce evidence to establish an offense or transaction other than the one with which the accused is charged, his objection that the proffered evidence is irrelevant and immaterial must be sustained, and that is so although at the preliminary hearing the transaction then sought to be established by the state was gone into by the state’s witnesses. It no doubt may occur that a magistrate who may not be well versed in criminal procedure may permit the witnesses on the preliminary hearing to go into different transactions, each one of which may constitute a separate offense, and thus it might well be that the accused could not truthfully claim that he was not given a preliminary hearing for the transaction the state seeks to establish at the trial. That fact would, however, not militate against the right of the accused to object to all evidence which does not support the charge in the information. The charge in the information, however, is the one which the state in opening its case has elected to proceed upon, regardless of the date stated in the information. It is manifest, therefore, that where the state has charged one transaction or offense in the information, but seeks to prove another and different transaction or offense at the trial, the accused need not rely upon the contention that he has not had a preliminary hearing, since, as I have pointed out, he may have had such a hearing, and yet his objection that the state seeks to prove an offense other than the one charged is good, and if his objection is overruled by the trial court, the conviction is not legal. It is thus clear that, when no preliminary hearing has been had respecting the offense or transaction charged in the information, the accused must take advantage of the defect by interposing a special plea to quash the information, and if he has already entered a plea of not guilty he, in order to avail himself of the special plea to quash, must ask and obtain leave to withdraw his plea of not guilty. This is so for the reason that this court, in common with all other courts where prosecutions may be based on information rather than on indictments, has too often held to be questioned now that by entering a plea of not guilty the *632accused waives Ms right to a preliminary hearing. While he may thus waive his right to a preliminary hearing, he does not waive his right to object to any evidence which is not limited to the very offense or transaction charged in the information, and the transaction is the one identified by the state in opening its case. Such an objection he may always successfully interpose. Where, therefore, as in the case at bar, the state has identified the transaction constituting the offense charged in the information, it cannot legally proceed to try the accused for any other transaction or offense. To attempt that is so clearly against fundamental principles that it now rarely occurs. When it does occur, however, as in this case, the accused is not driven to the expedient of withdrawing his plea of not guilty and interposing a plea to quash the information upon the ground that he had not had nor waived a preliminary hearing, but he may object to the introduction of any evidence except such as will sustain the transaction charged in the information and which the state has elected to establish by identifying it in opening its case. The real objection in this case, therefore, is that the state is attempting to establish the offense charged in the information by producing evidence of another transaction which occurred at a different time and place from the one which the state identified and elected to prove on the first hearing. That may not be done under our law, and hence the conviction cannot stand.
Prom what I have said it follows that the mere fact that the date is immaterial and that the precise date on which the transaction which constitutes the offense charged occurred need not be alleged in the information, yet when the state proceeds to trial and produces evidence identifying the transaction constituting the offense as having occurred on a particular date, the state is then bound by the date, and is not permitted to prove any other transaction occurring on a different date; and this is so whether the transaction was in fact gone into at the preliminary hearing or not. What I have here outlined is in effect what is decided in State v. Sheffield, as I understand that ease, and hence I cannot concur in what is said respecting that case by Mr. Justice THURMAN in his opinion.