dissenting.
In this case, and in the companion case of Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977), we review the actions of two district judges who were presented with the ex parte and unsupported motions of prosecutors to dismiss felony charges laid against defendants by the only judicial officials empowered by our constitution to hold preliminary hearings and to make exactly such determinations as were made.
In the Rufener case, the preliminary hearing took more than five days, and involved testimony encompassing more than 1,000 pages of transcript. The magistrate, Judge Granata, did not act at all perfunctorily, but rendered a painstaking explanation of his decision to bind Mrs. Rufener over on two felonies, and Mr. Rufener on three felonies. This was on May 22, 1975. Shortly thereafter, the prosecutor complied with the requirement that he file informations against the defendants. I.C. § 19-1302. Four months later, however, the prosecutor approached District Judge Bell wood ex parte, and on the strength of a motion stating only that he “desired” to dismiss and start anew, obtained the judge’s signature on orders dismissing all charges against both Rufeners.
The actions of the prosecutor in Stock-well were even more precipitate and unwarranted. Here no information was filed. On the very day that the magistrate, Judge Bennett, entered his decision and commitment order, the prosecutor approached District Judge Hargraves ex parte, and on the strength of a motion stating only that his motion was in the interests of justice, and his oral statement that he “wished” to start anew, obtained Judge Hargraves’ signature to an order dismissing the felony charges against Stockwell.
In Stockwell’s case the commitment, the dismissal, the refiling, and the habeas corpus hearing all took place within a matter of days. The strong position taken by Judge Hargraves at the habeas hearing against the prosecutorial practice which he had admittedly “accommodated,” undoubtedly served to assuage a mighty wound to the integrity of Judge Bennett’s court. In Rufener, however, the inroad upon the integrity of an examining magistrate was more devastating, and without any later compensating remarks by the district judge. Here the review of the district court’s dismissal and the subsequent refiling of the identical charges first came up not before the district judge who had granted the prosecutor’s desires, but before another magistrate of the same district. Whereas Judge Hargraves in Stockwell was in a good position to pass upon what had happened, including his own participation, Judge Shaud in Rufener was less favorably postured. Faced with a record which showed only that a district judge had dismissed the action, Judge Shaud was not in any position to sit in appellate review on that dismissal. Judge Shaud perceived that the only question upon which he could rule was whether or not he had jurisdiction. But, in order to obtain district court review of the highly irregular proceedings, Judge Shaud did stipulate to the record so that the issues involved could be laid before the district court on petition for a writ of prohibition. Unfortunately, Judge Bell wood did not go into the proposition that there were certain statutory requirements which must be fulfilled in order to dismiss pending felony informations, indictments or actions.
*809The matter is of extreme importance. A case of more lasting effect has not recently been before the Court. In the Rufener cases we were advised at oral argument that a second preliminary hearing has in fact since taken place, and that Judge Shaud, too, found that the evidence could not support a charge of first degree murder. We were also informed that due to the attendant publicity, it had been necessary to change venue from Minidoka County all the way north to Shoshone County. The result has obviously been additional expense to the State, and additional expense and inconvenience to the Rufeners, who were deprived of their right to a trial in the county where the alleged crimes took place. In Stockwell, the defendant has now seen over two years go by without so much as a preliminary hearing on the second complaint against him, notwithstanding his constitutional and statutory right to a speedy trial. I.C. § 19-3501; Schrom v. Cramer, 76 Idaho 1, 275 P.2d 979 (1954).
I. WHY THE APPEAL IN STOCKWELL SHOULD BE DISMISSED.
This appeal should have been dismissed instanter the moment this Court discovered from the record that, contrary to the assertion in the State’s brief, the second criminal complaint against Stockwell had not been dismissed.1 Counsel for the State originally caught the Court’s attention in this case by misstatement in his brief that an order had been entered granting a defendant’s motion to dismiss the second criminal complaint:
“Before the second preliminary hearing could be held the Defendant filed a petition for a writ of habeas corpus alleging that his restraint was unlawful because the second filing was contrary to the rules of criminal procedure and in violation of the due process clauses of the state and federal constitutions. He also filed a motion to dismiss the new complaint with prejudice. (Emphasis added.)
Even the majority admits that no such motion was made by defendant. Nor is there any recognized procedure for making such a motion in district court against a second criminal complaint pending before a magistrate and awaiting a preliminary hearing. It is elementary that a district court would lack jurisdiction to dismiss a complaint which is pending before a magistrate in a magistrate’s court. Claghorn v. Brown, 505 P.2d 998 (Okla.Crim.App.1973).
It necessarily follows that the second criminal complaint against the defendant, charging him with second degree murder, is and has been pending since the 30th day of October, 1975. The State needed no decision from this Court in order to proceed against defendant on the pending second degree murder complaint. Yet that is the entire thrust of its appeal. Like a modern-day Don Quixote, counsel for the State has ridden into this Court tilting at a nonexistent order, when there was no reason why the State could not have proceeded into the less fantasied combat of a preliminary hearing which, after all, by the rules of procedure is required to be held within 20 days. The Court, determined to play Sancho Panza to the State’s Quixote, compounds the absurdity by invoking its “plenary power” so that “the second criminal complaint, which is still pending [may be] freed from the [non-existent] constraints of the district court’s habeas corpus order.”
Why not dismiss the appeal? We have before us nothing to consider, unless it be whether the defendant, now out of custody for over two years, should or should not have been released. An insurmountable obstacle to our making a competent judicial review of that question is the sorry state of the record with which we are furnished by the state. We have no pleadings. We do *810have the Petition for the issuance of the Writ, wherein defendant alleges his incarceration and presents the history of his case. But we see no Writ. We do not know to whom it issued, or upon whom it was served. Of greater importance, we do not have the Return to the Writ, nor the Answer to the Return. It is the return which is absolutely essential, for, in habeas corpus proceedings, the return takes the place of the complaint and issue is drawn on the return and the answer to the return. These papers constitute the pleadings in a habeas proceeding. I.C. § 19-4212.
An appellate court does not sit to guess what the return may have stated. Nor are we to presume error on the part of a district court. Quite the contrary, the presumption is that the district court acted without error. That the burden of establishing error is with the appellant is a precept of this and all other jurisdictions.2 Seven different grounds for discharging a prisoner in custody are found in I.C. § 19-4215, and Judge Hargraves would have been justified in finding several of them applicable.3 Or, equally likely, the release from custody may have been simply a discretionary “o.r.” release under I.C. § 19-4219, with the district court concluding that such a disposition was just under all the circumstances of this case.
While it is true that the order of Judge Hargraves released the defendant from jail, it also appears that defendant was on the verge of making bond. Release of the defendant, by one means or another, could not affect the State’s right to prosecute. Judge Hargraves simply ordered the release of the defendant from custody. He did so because he concluded that defendant’s rights were being impinged upon. Here was a defendant first incarcerated under a $50,000 bond awaiting his preliminary hearing on a charge of second degree murder. At the preliminary hearing, the committing magistrate bound him over on a charge of voluntary manslaughter and accordingly reduced the bond to $15,000, an amount defendant was able to meet. The prosecutor, after being cautioned by the district court on the wisdom of dismissing the action, nevertheless had the action totally dismissed. Defendant was rearrested and bond was again set at a prohibitive $50,000. Under such circumstances, it ill behooves this Court to hold that Judge Hargraves incorrectly released the defendant from custody.
I conclude that this appeal should be dismissed simply because the legislature has *811not seen fit to allow an appeal by the State from an adverse determination made by a district court in a habeas corpus proceeding. The majority, in the last analysis, admits that the State is here appealing a non-appealable order but runs for cover under its unbridled authority “to review any decision of the district court, even if the party bringing the appeal has no statutory right to appeal the decision.” Such an approach is particularly ironic in face of today’s majority decision in the companion case of Rufener. In Stockwell, the majority invokes a so-called “plenary power” to hear the State’s appeal from an admittedly nonappealable order and to rule upon issues which formed no part of the matter before the district court. In Rufener, where those issues are properly before this Court, the appeal is dismissed because a “writ of prohibition” — the remedy which is recognized by all other state courts as appropriate under the circumstances — will not lie in cases of this sort! If the State, the public defenders, the magistrates and district judges of Idaho, and the entire state bar are confused by such appellate practice, I can offer them no solace, for I must confess to being equally confused.
However, there should be no confusion about the fact that the majority’s ruling on the merits of this case makes bad law — law that should stand for very little, and for not very long. The majority seems completely oblivious to section 13 of article 1 of the Bill of Rights of our Idaho Constitution, which guarantees due process of law to every Idaho citizen accused of a crime. It makes no mention of State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909), which is the very heart of defendant’s brief before this Court. Thereby, it totally ignores McGreevey’s thorough discussion of article 1, section 8 of the Idaho Constitution which so carefully distinguishes the function of the magistrate from that of the prosecutor. It equally ignores the plain provisions of I.C. § 19-1306 and § 19-3504 which effectuate this constitutional provision. These most serious and unwarranted assaults upon the Constitution and statutes of the State of Idaho are made in the name of providing a remedy for prosecuting attorneys who “decide” that a magistrate has erred in binding over a defendant to answer on a charge which is less than that which the prosecutor had brought. The Court seems to little realize that in giving this remedy to a prosecutor, a corresponding right is being taken from the defendant, and a corresponding attack is being made upon the integrity of this State’s magistrates. I am compelled to set forth the manner in which the Court has erred.
II. THE CONSTITUTIONAL FRAMEWORK IN IDAHO.
Among the rights afforded a person accused of a crime in Idaho is that guaranteed by the Idaho Constitution, article 1, § 8, which states that no person shall be held to answer for a felony unless by grand jury indictment, “or on information of the public prosecutor, after a commitment by a magistrate.” (Emphasis added.) The proceedings of the Idaho Constitutional Convention show that this language was carefully chosen. The framers wanted the probable cause determination to be in the hands of a neutral and detached magistrate — not in the hands of the prosecuting attorney. As narrated by this Court in State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909), a heated debate arose at the Constitutional Convention because, as originally drafted in committee, the proposed Idaho Bill of Rights would have “authorized prosecutions on information without any previous preliminary examination or commitment.” The upshot of the debate was that Mr. Claggett, the president of the Constitutional Convention, offered an amendment inserting the words “after a commitment by a magistrate” immediately following the word “prosecutor.” The amendment was adopted and, 20 years later, was authoritatively interpreted by this Court as follows:
“. .It was undoubtedly the intention of the constitutional convention, when inserting the clause, ‘after a commitment by a magistrate,’ in sec. 8 of the Bill of Rights, to prohibit the trial of any person for a felony or other offenses, not *812cognizable by a probate or justice court, until after he had been accorded a preliminary examination and been committed to answer therefor by the committing magistrate. It was intended by this prohibition to accord every accused person a hearing before a committing magistrate on the particular offense for which he was subsequently to be tried on information of the public prosecutor. It was likewise intended that the ‘probable cause’ for informing against the defendant and putting him on trial in the district court should first be found by the magistrate.” 17 Idaho at 463-64, 105 P. at 1050.
Our Bill of Rights, therefore, protects every Idaho citizen by carefully delineating the separate powers of the executive and judicial branches of government. To the prosecutor falls the initial decision as to whether or not a person should be prosecuted and, if so, on what charges. But once the complaint is filed, prosecutorial discretion is at an end. “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.” People v. Tenorio, 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993, 996 (1970).
Idaho statutes carry out the constitutional intent. I.C. § 19-804 provides that at the preliminary examination it shall be the duty of the magistrate to determine whether or not a public offense has been committed. I.C. § 19-815 states that the magistrate, after hearing the evidence, shall enter an order holding the defendant to answer, provided the magistrate finds that a public offense has been committed and that there is probable or sufficient cause to believe the defendant guilty thereof. The language in I.C. § 19-815, which presents the options and the form to be used make it clear that the magistrate can find the commission of a public offense other than the one charged in the prosecutor’s complaint. Once the magistrate’s determination has been made, the prosecutor’s sole function is to prepare and file the information against the accused in accordance with the magistrate’s commitment order. I.C. § 19-1302. This is a purely clerical and ministerial act, the same as if the prosecutor were preparing an indictment for the grand jury:
“ ‘There is thus neither in the constitution nor in the laws enacted in furtherance of it the slightest vestige of judicial, discretionary, or appellate power given to the district attorney in controlling the action of the committing magistrate. His functions are ministerial purely.’ ” (Quoting from People v. Nogiri, 142 Cal. 596, 76 P. 490, 491 (1904).) State v. McGreevey, 17 Idaho at 461, 105 P. at 1049.
By ignoring the separation of powers so painstakingly constructed in the Idaho Bill of Rights and so clearly effectuated by Idaho statutes, the majority opinion today undermines the role of the magistrate at the preliminary hearing, condones a flagrant example of prosecutorial overreaching, creates an improper standard of district court review and tramples upon the constitutional and statutory rights of Idaho citizens. It is to these issues that I now turn.
III. WHAT IS THE ROLE OF A MAGISTRATE AT A PRELIMINARY HEARING?
What is the precise role a magistrate must play at a preliminary hearing so as to honor the intention of the Idaho Bill of Rights? The question is at the very heart of today’s two cases. The majority states as the very first question before the Court on appeal: “Whether a magistrate in a preliminary hearing may reduce the charge in a complaint when the evidence presented in a preliminary hearing is capable of sustaining inferences supporting the charge in the complaint.” Indeed, this is the central question before the Court: Is the magistrate a judge whose decisions are entitled to a presumption of correctness, or is he a eunuch whose decisions are subject to being overturned by the “desire,” “wish,” or whim of the prosecuting attorney? Not surprisingly, the majority never answers the very question which it invoked its “plenary power” in order to address. The reason, of course, is that no law could be found to support its emasculation of the role of the magistrate in Idaho.
*813The magistrate’s function at the preliminary hearing parallels that of the grand jury, whose task it is “to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.” I.C. § 19-1107. In their judgment, not that of the prosecutor. And in reaching that judgment, “it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced.” (Emphasis added.) I.C. § 19-1106.4
That a magistrate, like a grand jury, has the right to weigh the evidence presented at the preliminary hearing and, if he sees fit, to bind the defendant over on a lesser charge than that brought by the prosecution, has always been understood to be the law in Idaho. In State v. McGreevey, supra, the Idaho Supreme Court quoted approvingly from an early Michigan opinion interpreting a statutory provision similar to our own constitutional provision:
“ ‘The clear evident intent of this statute was that the magistrate should exercise his best judgment in the matter; that he should from the testimony determine whether the crime charged in the warrant had been committed; or where, as in this case, the offense charged includes one or more of lesser degree, the magistrate should determine which offense, if any, had been committed, so that the accused might not be placed upon trial in the circuit to answer to a charge different or greater than the one on which he had been examined, and to answer which he had been held for trial.” (Quoting from Yaner v. People, 34 Mich. 286, 105 P. 1047, 1048.) (Emphasis added.) 17 Idaho at 459.
And in McGreevey the Court stated for itself:
“It is also true that a preliminary examination on the charge of murder necessarily includes all the degrees of murder and manslaughter as well. An examination for the greater offense would include the lesser offenses which are necessarily and as a matter of law included within the offense named and charged. So in this case the examination on the charge of murder included the charge of manslaughter, and it was within the power of the magistrate to hold the defendant for manslaughter, but it was not within the power or authority of the prosecutor to file an information under that commitment for a higher or different offense than that for which he was committed.” (Emphasis added.) 17 Idaho at 464-65, 105 P. at 1050.
In McGreevey, the prosecutor was a bit less subtle than in the present case. There, the prosecutor simply ignored the magistrate’s commitment order (binding the defendant over on a charge of manslaughter) and filed an information charging murder. Here, the prosecutor rejected the decision of the magistrate and, with a mere dial of his telephone, obtained the dismissal of the commitment order, refiled a new and identical criminal complaint for second degree murder, and had Stockwell rearrested. The prosecutor’s conduct here, which even the majority recognizes as a transparent “attempt to circumvent the ruling of the magistrate,” has proved more effective than in McGreevey only because the prosecutor in that case found a more constitutionally-oriented Court unwilling to countenance his irregular conduct.
It should be noted that Idaho is not alone in holding that a magistrate at a preliminary hearing is empowered to weigh all evidence and, if he so decides, to bind the defendant over on a lesser charge than that brought by the prosecutor. The same role has been urged by the drafters of the Model Code of Pre-Arraignment Procedure and *814adopted by the American Law Institute in 1975. Once the magistrate has made his determination, he may not be second-guessed by a prosecutor except in the case of a plain abuse of discretion. See, Esteybar v. Municipal Court for Long Beach Jud. Dist., 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 (1971); Myers v. Commonwealth, 298 N.E.2d 819 (Mass.1973).
IV. OPTIONS AVAILABLE TO THE PROSECUTOR.
Once an accused has been bound over for trial on a specific charge, an Idaho prosecutor’s options are strictly limited. McGreevey makes it clear that the prosecutor can not ignore the magistrate’s order committing Stockwell to answer for the offense of voluntary manslaughter and file an information for the offense of second degree murder. Neither can he simply drop the case since the prosecutorial right of nolle prosequi has been done away with in Idaho:
“19-3505. Nolle prosequi abolished.— The entry of a nolle prosequi is abolished, and neither the attorney-general nor the prosecuting attorney can discontinue or abandon a prosecution for a public offense except as provided in the last section.” (Emphasis added.)
The question therefore arises: When, and under what circumstances, may a disappointed prosecutor challenge the sufficiency of the evidence to support the magistrate’s commitment order? The majority fears a lack of symmetry in the appeals process because such a right belongs to the defendant by virtue of the recently enacted I.C. § 19-815A.5 See State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973). It should be noted, however, that a defendant has always had the same right under the habeas corpus provisions of the Criminal Procedure Act of 1864, which provisions are now codified as I.C. § 19-4215.6
In Stockwell and in Rufener, it is now the State who would challenge what it deems to be magistrate error in binding over the defendant on a lesser charge than that brought by the prosecutor. Yet, in all of Idaho’s history, both as a State and earlier as a territory, there has not been any statutory provision which grants the State the full panoply of rights which are provided to an accused under I.C. §§ 19-815A and 19-4215(7). When the time comes that the State is the accused, it will be time enough to afford such protections to the State.
Surely, no such right can be created under the guise of this Court’s rule-making powers. The principles enunciated by Justice Bakes and myself in State v. Creech, - Idaho -, - P.2d -, 1977, are applicable here. This Court cannot by its own fiat, legislate in an area where fundamental and constitutional rights are at stake. Redress of what the majority perceives as an imbalance between the rights of the accused and of the prosecution, would have to come from the legislature. I sound the alarm now, loudly and clearly, to the bench and bar alike, to the legislature and to the people of Idaho that Titles 18 and 19 form the backbone of the criminal justice system of this state. They must not be allowed to be repealed on the mere say-so of some Court-*815appointed committee and replaced with that committee’s preferred set of rules.
It is my conviction that Title 19, properly applied, is fully adequate to meet the State’s needs in those rare instances where going to trial on the charges stated in the magistrate’s commitment order would clearly not be in furtherance of justice. For example, a more sophisticated laboratory analysis might reveal a drug offense where none had previously been expected, People v. Ayala, 34 Cal.App.3d 360, 109 Cal.Rptr. 193 (1973); or the State’s key witness might be absent from the first preliminary hearing but later become available, Arnold v. Williams, 222 Cal.App.2d 193, 35 Cal.Rptr. 35 (1963); or the magistrate might make a clear error of law in holding that an accused did not “escape,” and later discover that there was, indeed, a valid commitment order holding him in custody, Chase v. State, 517 P.2d 1142 (Okla.Crim.App.1973); or the prosecutor might want to bring a charge of murder where the victim dies after the magistrate has bound the accused over on charges of assault. I.C. § 19-1717.
The procedure which a prosecutor must follow in such cases is prescribed by I.C. § 19-3504:
“19-3504. Dismissal on motion of court or prosecuting attorney. — The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.”
This statute is recognized by Idaho Criminal Rule 48(b):
“(b) By Court. The court may dismiss the criminal action:
(1) If there is unnecessary delay in presenting the charge to a grand jury or if an information is not filed within the period prescribed in Rule 7 of these rules, or if there is an unnecessary delay in bringing the defendant to trial.
(2) If, for any other reason, it concludes that such dismissal will serve the ends of justice and the effective administration of the court’s business.
(3)An order for the dismissal of the action, as provided by Rule 48(b), is a bar to any other prosecution for the same offense if it is a misdemeanor; but it is not a bar if the offense is a felony.”
When a prosecutor moves the court for a dismissal under I.C. 19-3504, his motion obviously must set forth the reasons which he anticipates the court will find to exist as a predicate for granting the motion. Here no reasons were set forth by the prosecutor. The Motion to Dismiss stated only:
“Comes now, the State of Idaho, by and through Garth S. Pincock, Prosecuting Attorney for Bannock County, Idaho, and moves the Court to dismiss the above entitled action without prejudice in the interests of justice.”
Such a bare-bone motion was totally insufficient to give a district judge a record which would enable him to make a judicial determination.
Nor would it have helped the prosecutor to urge, as the State now does in his behalf on appeal, that he was proceeding under authority of I.C.R. 48(a). Rule 48(a) for what it may be worth, purports to give a prosecutor by leave of court, the right to dismiss a complaint, an indictment, or an information. Here there was no indictment or information. The complaint, which had been before Judge Bennett was superseded by an Order of Commitment holding the defendant to answer in district court. The drafters quite apparently had in mind that Rule 48(a), a supposed prosecutor’s dismissal, was to be a rule version of the statute, I.C. § 19-1306, which requires a prosecutor to set forth in writing his reasons for refusing to file an information and for seeking a dismissal:
“The provisions of Rule 48 should be read in conjunction with Section 19-1306, which permits the prosecuting attorney, even after a preliminary examination, to make a determination that an information ought not to be filed, in which case he is required to make, subscribe and file with the clerk of the court a statement in writing containing his reasons, in fact *816and in law, for not filing an information in such case, . . (Emphasis added.) Comment, Rule 48.
The importance of such a statement of reasons must not be minimized. The defendant has just been subjected to a preliminary hearing and has a right to rely on its outcome. The people have a right to see that a prosecutor prosecutes a case in which a magistrate has ordered that a defendant be held to answer for the commission of a felony. As noted by the drafters of the Criminal Rules, these values are safeguarded by close district court scrutiny of the prosecutor’s filed statement:
“The section [I.C. § 19-1306] also provides, however, that the court may examine such statement and if the court is not satisfied with the statement, the prosecuting attorney may be directed by the court to file the proper information and bring the case to trial.” Ibid.
The order of dismissal in Stockwell’s case without question was a dismissal by the court, and not a prosecutor’s dismissal. As pointed out, there was nothing in district court the prosecutor could dismiss; no complaint, no indictment, no information. It was the action in district court that was dismissed, and it was the dismissal of the action for which the prosecutor moved, and for which he could move both within the language of I.C. § 19-3504 and Rule 48(b).
Fatally, the prosecutor failed entirely to support his motion. It was founded on an oral “wish,” conveyed ex parte to Judge Hargraves, and premised upon the wholly insufficient and conclusory statement in the motion that it was made “in the interests of justice.” Without supporting reasons being given for the motion, no judicial determination could be made as to whether the motion to dismiss was in the interest of justice. It follows that the district judge was entirely without and in excess of his jurisdiction in entering an order dismissing the proceedings.
V. THE DISTRICT COURT’S ROLE AT A HEARING TO DISMISS.
As stated above, the prosecutor has no right, on his own, to refuse to file an information or to dismiss an information once it has been filed. He may do so only if he states in writing reasons in fact and in law, sufficient to convince the district court that dismissal actually is in the furtherance of justice. This is not the only prerequisite to the grant of a dismissal. (1) In district court due process requires notice of hearing and an opportunity to be heard on such a motion. (2) The standard of review in district court is addressed to the question of whether or not the magistrate has grossly abused his discretion. (3) If the district court grants the motion, the statute requires that an order be entered upon the minutes setting forth the reasons. Thus all may know upon what basis a court would halt and dismiss the prosecution of a felony. In Stockwell and in Rufener, the respective district courts violated all three of these circumstances — each and every one of which is a condition precedent to the entry of a valid order of dismissal.
1. A Contested Dismissal Requires a Hearing.
The majority admits that the entire habeas hearing was “concerned primarily with the propriety of the prosecuting attorney’s ex parte dismissal of the first criminal proceeding.” Unfortunately, the majority never itself addresses the question. This is not surprising since, by its own admission, the majority is invoking its “plenary power” only to address those recurring questions “which must be resolved to prevent future criminal proceedings from being improperly dismissed or reduced by erroneous rulings of the magistrate or district judge” — not to address those recurring questions which would have to be resolved so as to safeguard the constitutional rights of Idaho citizens and the integrity of its magistrates. In yet another sense, it is not surprising that the majority fails to address the ex parte dismissals which occurred in Stock-well and in Rufener because, again, it could find no law or policy reasons to support its endorsement of such a practice.
*817A defendant has a right to rely upon the outcome of a preliminary hearing. In fact, the Court in Carey, supra, stated the defendant’s right in terms of a guarantee:
“The Idaho Constitution guarantees an accused’s right to a preliminary hearing before a magistrate and, afterwards, to be prosecuted by information or the presentment on indictment of a grand jury. Idaho Const, art. 1, § 8.” 91 Idaho at 710.
The time and effort of counsel and the magistrate at the preliminary hearing become worthless where, as happened in both of these cases, a disgruntled prosecutor can casually “side-door” a district judge, and have the determination of the magistrate thrown out without there ever having been a judicial hearing. It is so fundamental as to be self-evident that when a prosecutor’s attempted dismissal would undoubtedly be contested by the defendant who has the guarantee of Carey, supra, a district court must not hear the dismissal motion ex parte. A district court, if in doubt, can easily resolve the matter by asking defense counsel if an opportunity to be heard is desired.
In the case of State v. Burri, 550 P.2d 507, 513 (1976), the Washington Supreme Court noted its own criminal rule on the subject which states: “The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order.” (Emphasis added.) Wash.Cr.R. 8.3(b). Though the Idaho Criminal Rules and the criminal code do not include similar language as to notice and hearing, notice and an opportunity to be heard are fundamental due process rights of the accused when the prosecutor seeks district court dismissal of a magistrate’s commitment order in an effort to refile a criminal complaint for a higher offense.
In California, in the same situation under the same statute, it has been held that the prosecuting attorney must be given notice and an opportunity to attend proceedings at which a municipal court, on its own motion, is to decide whether a misdemeanor complaint will be dismissed under California Penal Code, section 1385 [Idaho § 19-3504]. The reasons why the prosecutor must be given notice and the opportunity to be heard are:
“First. It will enable the trial judge to make a more informed decision, which every judge aspires to do, by presenting an opportunity to inform himself of the total picture. ... A defendant would be less likely to make untrue representations, if the prosecutor were present. .
“Second. Even in the absence of a statutory requirement of notice, if the rights of an adverse party are likely to be affected, requirement of a notice of motion is a basic concept to be observed, absent a legal showing of an emergency justifying its dispensation. ... In certain cases, just a telephone call to the prosecutor with a reasonable opportunity to appear might be adequate. But some kind of notice is a requisite and the onus thereof is not unreasonable.
“Third. By the observation of our basic notion that a criminal proceeding is basically adversary in nature, the general respect of the public for courts and the judicial process, we feel, will be promoted. Courts and judicial officers must at all times not only be fair in fact, but also be diligent in preserving the appearance of fairness as well. .
“Finally, we feel that by requiring that the prosecutor be given notice and opportunity to be present, it will ease some of the unfair and improper pressures sometimes placed upon judges . . .” People v. Gonzales, 235 Cal.App.2d Supp. 887, 46 Cal.Rptr. 301, 303-304 (1965).
The reasons stated above apply with equal, if not greater, force in the case of a defendant whose commitment as found by the magistrate is sought to be dismissed. See also, State v. Fernie, 129 Vt. 605, 285 A.2d 726, 727, (Vermont 1971).
In short, on a prosecutor’s motion to dismiss, the defendant has a right to notice and the opportunity to be heard. This is the logical conclusion to be drawn from *818Idaho’s tradition of protecting the accused by interposing a detached judicial official between him and the prosecutor. The ex parte dismissals exacted of the district court by overzealous prosecutors in these two cases, and today endorsed by the majority, violate that tradition. On this basis alone, I would find these ex parte dismissals fatally defective.
2. The Standard of Review in District Court.
The majority holds that “the prosecutor had cause to bring a second criminal complaint against Stockwell based upon his good faith belief that the magistrate erred” and his self-serving statement that he was not magistrate-shopping. It can be conceded that many are the Idaho prosecutors who have entertained the “good faith” belief that a magistrate has erred in reducing a criminal complaint from murder to manslaughter. It might equally be noted that many are the prosecutors who have entertained the good faith belief that a district court has erred in granting a defendant’s motion for directed verdict or in meting out unduly lenient sentences. But while good faith on the part of the prosecutor is necessary,7 it by no means follows that that high quality alone justifies a prosecutor’s motion to overturn the magistrate’s determination.
On the contrary, the standard which has long governed district court review of magistrate commitment orders in Idaho reads as follows:
“A wide discretion must be given to a committing magistrate in binding over, and in order to vacate and nullify his action in this regard, it must be shown that such action was a plain case of abuse of discretion.” (Emphasis added.) State v. Layman, 22 Idaho 387, 390, 125 P. 1042 (1922).
And see, State v. O'Mealey, supra, 95 Idaho at 204; In re Levy, 8 Idaho 53, 66 P. 806 (1901).
In short, the Idaho magistrate is given wide discretion in his decision to bind over; his is the determination as to what offense has been committed. The prosecutor who claims an abuse of magistrate discretion must state in writing his reasons for challenging that decision; his is the burden of showing that there has been a plain abuse of discretion. The prosecutor’s reasons, along with the record which was before the magistrate, form the basis of district court review. District court review, under I.C. § 19-3504, is limited to a determination as to whether or not the magistrate has plainly abused his discretion.
The same standard of review has been elaborated in detail by the Michigan Supreme Court in the recent, well-reasoned case of Genesee County Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974). Michigan retains a prosecutorial right of nolle prosequi, and with that context in mind, the state’s highest court has instructed its district courts that they must review,
“. . . the action of the magistrate and prosecuting attorney on the record— the record made before the magistrate at the preliminary examination, and the prosecutor’s statement of reasons and ‘the evidence filed in the case.’ Such review is a judicial review, searching the record to determine whether the magistrate’s or prosecutor’s decision is in accord with the law, facts and reasons of the matter. .
“[A district judge] . . . may reverse a magistrate’s decision only for abuse of discretion. He may not properly substitute his judgment for that of the magistrate or prosecuting attorney as if he were reviewing the magistrate’s decision de novo or acting in a supervisory capacity with respect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power confided in them.” 215 N.W.2d at 147.
*819In this ease, not only was this standard of review not met, but in essence there was no review at all. The magistrate’s commitment order was filed at 2:00 o’clock p.m. on October 30, 1975, several hours after the preliminary hearing was held. Even before the order was filed, however, the prosecutor, together with a Pocatello police officer, went to the office of the district judge with a Motion to Dismiss. Judge Hargraves, as he later stated in the habeas action, expressed misgivings and asked if the prosecutor had legal authority to proceed in this manner. He suggested that the prosecutor research the matter and that if he then still wished the Order signed, he would be accommodated. Later that same afternoon, between 4:30 and 4:45, the prosecutor telephoned the court and said that he did want the Order signed and handed to the clerk for filing. This was done, the Order was filed at 5:02 p.m., and Stoekwell was served with a new complaint charging him with second degree murder.
The prosecutor failed to make any showing to challenge the outcome of the proceedings in magistrate’s court. Contrary to what the casual reader would glean from the majority’s hindsight scrutiny of the preliminary hearing transcript, no record of the proceedings in magistrate court was given to Judge Hargraves. In fact no record was available. The “hearing,” if such it could be called, was held in the absence of the only other party likely to give a balanced account of what had transpired. The district judge did not consider, let alone determine, whether the magistrate had abused his discretion because, as the record shows, it was not even alleged that the magistrate had abused his discretion. Indeed, the prosecutor himself stated that,
“. . after we had rested, I had asked the court for permission to reopen if he felt that additional evidence was necessary, and of course it was within his discretion to deny me that opportunity.”
To grant a dismissal, under such circumstances, makes a nullity of the Idaho Constitutional protections. It justifies the cynicism of those members of the Constitutional Convention who predicted that the constitutional protections would come to naught because “with most magistrates it seems that the dictum of the district attorney is the end of the law.” State v. McGreevey, supra, 17 Idaho at 458, 66 P. 806. Such conduct is unacceptable in magistrate court. It is even less acceptable on appeal in district court.
District court review in a case such as this must be under the statute; a dismissal should be granted only if the record shows a plain abuse of discretion on the part of the examining magistrate. Here, there was only the bare oral assertion by the prosecutor that “we had felt we had put on ample evidence to bind the defendant over as charged,” and the request for permission to reopen in order to produce additional testimony. The district judge’s evaluation of such a request, belatedly announced at the habeas corpus hearing, is the response he should have made at the earlier dismissal “hearing”:
“A person charged with Murder in the Second Degree is, in the words of the southern sheriff, ‘in a heap of trouble.’ Homicide, in any form, is very serious business. This Court, at least, believes a prosecuting attorney, presenting evidence at a preliminary hearing involving homicide in any degree must go into court with a fully loaded gun. He is under a duty to those he represents to present the best and most persuasive evidence he has. He may not withhold evidence in the vain hope the magistrate may guess or through Divinity or extra-sensory perception know what additional evidence the prosecutor may have available. In accordance with the law the magistrate must make his finding based upon SUBSTANTIAL EVIDENCE; not upon speculation or conjecture.”
A prosecutor, of course, is not obliged to show his whole case at the preliminary hearing. Neither can he be coy and withhold evidence, in hope of later tactical advantage, if such evidence is necessary to convince the magistrate that a suspect should be bound over on the highest offense charged. See, Jones v. State, 481 P.2d 169 *820(Okla.Crim.App.1971); Stone v. Hope, 488 P.2d 616 (Okla.Crim.App.1971). To allow a dismissal and refiling every time the prosecutor miscalculates the quantum of evidence needed to gain the desired commitment, as Judge Hargraves later ruled,
“. . . would not only do violence to the due process right's of this Petitioner but would establish a very dangerous precedent which could adversely affect numerous other persons charged with crime. If the prosecutor could do this once, why not twice, ten times, or innumerable times? Conceivably a defendant could spend months in jail, not being able to make bond, and remaining always at the preliminary hearing stage with never a hope for an early trial on the merits of the case, unless the prosecutor happened upon a magistrate who would not ‘have in mind doing something different than what [the prosecutor] wanted done.’ The criterion is not what the prosecutor wants done but rather what should be done by an impartial, neutral tribunal based upon substantial evidence. The magistrate is not expected to be a rubber stamping puppet either for the prosecutor or for the defendant.” (Emphasis added.)
Had the district judge used this criterion when dismissal was requested by the prosecutor, he would not have granted the motion to dismiss, and this case would long ago have ended in a plea, or gone to trial.
To his credit, Judge Hargraves tacitly admitted at the habeas proceeding that he had erred in granting an ex parte dismissal of the first action in violation of Stockwell’s due process rights and in violation of his own obligation to accord “wide discretion” to the committing magistrate and to reverse that determination only when it was shown to be “a plain case of abuse of discretion.” State v. Layman, supra. After such a candid admission by the district judge regarding the inadequacy of his own decision, it is strange indeed to find this Court sua sponte shoring up that decision by references to a record which was not available to the district judge. Once it is demonstrated that the district court failed to make the review mandated by this state’s constitution, statutes and case law, this Court’s review should be at an end. Our task, after all, is to review the decision the district judge actually made, not one he might have made had he been presented with a proper motion and a full record.
3. The District Court Must State Its Reasons for Granting a Motion to Dismiss.
Contrary to what the reader might infer from the majority opinion, the district court in this case gave no reasons for granting the dismissal requested by the prosecuting attorney. Absolutely none. The court’s ruling is entered on the prosecutor’s motion to dismiss and reads simply: “It is so ordered.” The minutes of the court, if any were kept of this ex parte request, have not been included in the record the State has brought to us on appeal.
The State argues that reasons need not be stated in the court minutes because the prosecutor was here proceeding under I.C.R. 48 which requires that the district court’s reasons be stated only when a dismissal is granted over the prosecutor’s ob-' jection.8 In its brief beforé this Court, the State, in effect, argues that the passage of I.C.R. 48 has repealed the provisions of I.C. § 19-3504:
“Prior to the adoption of the Rules of Criminal Procedure, the Idaho statutes provided that a felony complaint might be dismissed either by the court or by the prosecuting attorney. There was a requirement'that the reasons for dismissal be set forth in an order entered upon the minutes. Idaho Code, § 19-3504. Rule 48, which covers the same subject matter, provides that the prosecuting attorney *821may, with leave of the court, file a dismissal of a complaint, indictment or information. Rule 48 does not require a statement of reasons in the order of dismissal unless the court dismisses an action on its own motion over objection of the prosecuting attorney, in which case the court is required to spread upon the record its findings and reasons for dismissal. Rule 48(c). The effect of this change is to eliminate the requirement of a formal statement of reasons if the prosecuting attorney files a motion to dismiss.”
I am much saddened by the State’s argument on this point and its apparent acceptance by the majority — who quote approvingly from I.C.R. 48 and hold I.C. § 19-3504 for naught. It is standard appellate practice in Idaho to interpret two statutes or a statute and a rule so as to save both, if that is at all possible. State v. Jennings, 95 Idaho 724, 726, 518 P.2d 1186 (1974). In the present case, where the rule addresses itself to one situation (dismissals over the objection of the prosecutor) and is silent about another (dismissals over the objection of the defendant), and where the statute is explicit on both, I see no reason for choosing between the two. The rule and the statute can be harmonized with no difficulty by giving effect to the clear requirements of both.
But the State’s argument strikes more deeply and implies that the passage of I.C.R. 48 has somehow repealed I.C. § 19-3504. The State, in effect, is advocating the supremacy of a recent court rule of procedure over a substantive statutory provision which has been the law in this jurisdiction for well over 100 years. I am unable to ascertain how or by what authority a procedural rule could purport to change statutory substantive law — or, indeed, why a rule should be promulgated which is at best a poorly drafted repetition of the substantive law in this area. What is clear, however, is that the provisions of I.C. § 19-3504 are substantive and not merely procedural. In an area such as this, as Justice Bakes noted recently in State v. Creech, - Idaho -, - P.2d - (1977), one must not confuse “the procedure by which the Idaho courts conduct their business” with “the substantive law which governs the case.”
An order dismissing a criminal action which does not state the reasons presents a very obvious violation of I.C. § 19-3504 which states:
“The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.” (Emphasis added.)
Although this Court has never construed the precise language of this statute, the California Supreme Court has just recently, en banc and unanimously, stated its view of the identical provision:
“Secondly, we note that the dismissal of counts I and II is manifestly invalid under section 1385 because of the court’s failure to comply with the following provision of the statute: ‘The reasons of the dismissal must be set forth in an order entered upon the minutes.’ (Italics added; see fn. 6, ante.) It is settled law that this provision is mandatory and not merely directory. Recently in People v. Superior Court (Howard) (1968), 69 Cal.2d 491, 502-503, 72 Cal.Rptr. 330, 446 P.2d 138, while recognizing the broad right of a trial judge to dismiss in furtherance of justice, we adverted to the requirement that he ‘must state his reasons in the minutes' and took pains to point out that ‘[i]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385.’” [Citations omitted.] (Emphasis added.) People v. Orin, 120 Cal.Rptr. 65, 533 P.2d 193, 198 (1975).9
*822“Thus, it has been said: ‘The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason “so that all may know why this great power was exercised.” ’ [Citation omitted.] The underlying purpose of this statutory requirement is ‘to protect the public interest against improper or corrupt [fn. omitted] dismissals’ and to impose a purposeful restraint upon the exercise of judicial power ‘Lest magistral discretion sweep away the government of laws.’ ” [Citations omitted.] Ibid., 533 P.2d at 197-98.
The Utah Supreme Court, interpreting statutory language identical to that of Idaho, has given the policy reasons for insisting that a district court state its reasons for granting a dismissal:
“Because of the nature of criminal proceedings, and because they are in the interests of and for the protection of the public there is a sound basis in public policy for requiring the judge who assumes the serious responsibility of dismissing a case to set forth his reasons for doing so in order that all may know what invokes the court’s discretion and whether its action is justified.
“We conclude that the court erred in dismissing the seven cases in question. We therefore comply with the request in his memorandum submitted to this court: ‘If I am wrong, kindly reverse me.’ In conformity with this request, the order of dismissal is therefore ‘kindly’ reversed.” Salt Lake City v. Hanson, supra, 425 P.2d at 775.
And see, the many cases cited therein to the same effect. Unless there is some reason, and I see none, why we should not follow the decision of our neighboring states’ highest courts in construing statutes identical to ours, the district judge’s failure to state his reasons in the court’s minutes renders his dismissal order in this case invalid.
CONCLUSION.
It bears repeating that this appeal is from the grant of Stock well’s petition for writ of habeas corpus. Defendant had every right to complain about being jailed on a second criminal complaint when there had been no valid dismissal of the first action against him. The State, having invited and caused that error by its improper motion for dismissal, should not be able to take advantage of the invalid order it secured. The appeal in Stockwell’s case should be dismissed for the reasons which have been stated above.
The real losers in the decision handed down by today’s majority opinion are not the Rufeners, nor Stockwell, but the people of this state and their criminal justice system. For as long as I have been at the practice of law, and for 85 years before that, it has been the law in Idaho that neither the Attorney General nor the prosecuting attorney can discontinue or abandon a prosecution for a public offense (I.C. § 19-3505) except in furtherance of justice, in which case the court must set forth the reasons for the dismissal to be entered upon the minutes. (I.C. § 19-3504) To my dismay, the Court today supplants that substantive statutory provision with a new law of its own making, doing so under the guise of its right to make rules of procedure. At the same time, the Court tramples into the ground the constitutional provision interposing a neutral and detached magistrate between an accused and the prosecutor.
The Court’s decision today is a gratuitous attack upon Idaho’s magistrates whom our Bill of Rights, article 1, § 8, entrusts with the task of protecting Idaho citizens from the over-reaching of prosecutors, but whose interests in this case are “represented” by the Attorney General, the state’s chief prosecutor! The impugning of magistrates’ au*823thority which inevitably flows from today’s decision likewise is most unfortunate in an era of judicial reform in Idaho. When the Supreme Court chooses to invoke its rarely exercised “plenary power” so as to hear an appeal from a non-appealable order and then engages in what Justice Shepard characterizes as “blatant speculation” regarding what might have happened had the prosecutor followed proper procedure at the preliminary hearing and then overturns a magistrate’s decision, the lesson will not be lost on this state’s magistrates. The Court clearly gives its blessing to the type of structure needed to support “prosecutorial zeal that demands an obsequious judge and inevitable victory in every case.” People v. Uhlemarm, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609, 614 (1973).
Under such circumstances, I can only join with Justice Mosk of the California Supreme Court who was compelled to disavow the same outcome when that Court likewise gave its blessing to “a gross example of a prosecutor seeking to circumvent a judicial determination.” As he remarked,
“The majority add ‘sound practical reason’ for their conclusion: magistrates need not be members of the bar, and presumably some have limited knowledge of the law. Regrettably the final elimination of nonlawyer judges in California has been a painfully slow process. But the retention of a few judges of dubious qualification reflects upon the administration of justice, not upon the rights available to a defendant. ... In any event no one questions the qualifications and experience of the legally trained magistrate in this case.” Ibid. 511 P.2d at 619.
In Idaho, on the contrary, a healthier situation prevails. In one of our districts, all of the magistrates are members of the bar. So far as I know, in the other districts, most magistrates are attorneys and it is my understanding that attorney-magistrates preside at preliminary hearings in felony cases. Many of our magistrates have become district judges, and many more are qualified to do so.10 I can see nothing— nothing whatever — which justifies the Court today in holding that the magistrates in these eases did not comprehend their function at a preliminary hearing and that their decisions deserve to be overturned at the mere “desire,” or “wish” or whim of the county prosecutor.
. That the second criminal complaint remains standing is not seriously in dispute. The majority opinion admits that the State “apparently misunderstood” the portion of the district judge’s order which it interpreted as a dismissal of the second criminal complaint. The majority’s admission that the second criminal complaint was not dismissed is, of course, inconsistent with its statement that if the district judge’s order “is considered an order dismissing the second criminal complaint, it is probably analogous to dismissal on demurrer and appealable under I.C. § 19-2804(1).”
. The Court today continues further down the path it so recently traversed in State v. Lopez, 98 Idaho 581, 570 P.2d 259 (1977). In that case it was the defendant who left the record behind and thereby succeeded in convincing a majority of this Court that Idaho’s prostitution statute was vague-as-applied (since we did not know how it had been applied). Today it is the State that has chosen to leave the record behind and emerges successful as a result of the Court’s willingness to assume that the missing record, if present, would support the State’s position. The only principle I can decipher to reconcile the holdings of these two cases is that this Court does not discriminate between the State and the defendant: whichever party has lost below will find this Court predisposed in its favor if only it omits from the record all documents which support the adverse decisions below. For the reasons stated in my dissent, in Lopez, I continue to assert that this practice violates every known standard of appellate review.
. “19-4215. Grounds for discharge. — If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of the last section:
1. When the jurisdiction of such court or officer has been exceeded.
2. When the imprisonment was at first lawful, yet by some act, omission or event which has taken place afterward, the party has become entitled to a discharge.
3. When the process is defective in some matter of substance required by law, rendering such process void.
4. When the process, though in proper form, has been issued in a case not allowed by law.
5. When the person having the custody of the prisoner is not the person allowed by law to detain him.
6. Where the process is not authorized by any order, judgment or decree of any court, nor by any provision of law.
7. Where a party has been committed on a criminal charge without reasonable or probable cause.”
. If one were to accept the position of the majority, a prosecutor would also be at liberty to overthrow the probable cause finding of a grand jury. I doubt seriously that any one would urge that a prosecutor could refuse a grand jury’s direction to prepare an indictment or could convince a district judge to dismiss such an indictment ex parte and without any showing whatsoever.
. “19-815A. Challenging sufficiency of evidence of preliminary examination. — A defendant once held to answer to a criminal charge under this chapter may challenge the sufficiency of evidence educed at the preliminary examination by a motion to dismiss the commitment, signed by the magistrate, or the information filed by the prosecuting attorney. Such motion to dismiss shall be heard by a district judge.
“If the district judge finds that the magistrate has held the defendant to answer without reasonable or probable cause to believe that the defendant has committed the crime for which he was held to answer, or finds that no public offense has been committed, he shall dismiss the complaint, commitment or information and order the defendant discharged.”
. It was under this section of the code that the district court reviewed the evidence submitted to the examining magistrate in Carey v. State, 91 Idaho 706, 429 P.2d 836. The accused there admitted that he could be charged with a felony, but denied that the record could “support a preliminary finding of sufficient evidence to hold him to answer a charge of deliberate and premeditated murder.” 91 Idaho at 709, 429 P.2d at 839.
The trial court, and this Court on appeal, held that “the magistrate's discretion should not be disturbed except in a clear case of abuse thereof.” Ibid. (Emphasis added.)
. If a prosecutor were not in “good faith,” he would either be “faithless” or in “bad faith." If a prosecutor were in “bad faith” in bringing about the nullification of a magistrate’s order that an accused be held to stand trial on a felony charge, such a prosecutor would be chargeable with obstruction of justice. I.C. § 18-705.
. “Rule 48. Dismissal. — (a) By Prosecuting Attorney. The prosecuting attorney may by leave of court file a dismissal of a complaint, indictment or information.
“(c) Record. If the court over objection of the prosecuting attorney dismisses a complaint, indictment or information under this subsection, it shall state, on the record, its findings of fact and reasons for dismissal.”
. Justice Bakes remains unconvinced that Orín stands for the proposition that a district court order is invalid when “the record contains no minute entry setting out the reasons for the dismissal.” I leave it to the reader to peruse the California case law. See also, People v. Superior Court, 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138 (1968); People v. Smith, 53 Cal. *822App.3d 655, 126 Cal.Rptr. 195 (1975); People v. McAlonan, 22 Cal.App.3d 982, 99 Cal.Rptr. 733 (1972); People v. Beasley, 5 Cal.App.3d 617, 85 Cal.Rptr. 501 (1970). However, I am content to rest my argument not on California case law but on the clear and unequivocal language of the Idaho statute.
. Some of our lay magistrates, even prior to the judicial reform of 1971, were examining magistrates under the justice of the peace and probate court systems, and rendered excellent performance, and in accord with that envisioned by the framers of our Constitution. Others, new to the system, have all recently taken and passed a comprehensive course in criminal law procedures, with an especial emphasis on preliminary hearings.