dissenting:
I respectfully dissent. The plain reading of Crim. P. 5(c)(3) forced the county judge to either bind the defendant over on “the offense charged” or to dismiss the complaint. Accord, Application of Williams, 85 Ariz. 109, 333 P.2d 280 (1959); State v. Pansey, 61 Nev. 333, 128 P.2d 464 (1942); People v. Swain, 5 Cal. App. 421, 90 Pac. 720 (1907). In the event the complaint was dismissed, the district attorney, under the rule, has the authority to file a direct information in the district court pursuant to the provisions of Crim. P. 7(b) (3)(ii). In the event the district attorney elected to file a direct information in the district court, the defendant would have been entitled to a new preliminary hearing. Crim. P. 7(g)(1). In my view, the Rules of Criminal Procedure are to be construed in para materia and should not be modified by judicial interpretation.
Accordingly, I would discharge the rule to show cause and affirm the action taken by the district court.
MR. JUSTICE HODGES has authorized me to say that he joins me in this dissent.