(concurring in the result).
I agree with the result reached in the prevailing opinion but cannot agree that a committing magistrate cannot lawfully examine witnesses under oath before a written complaint is filed: The statutes set forth in the prevailing opinion make it the duty of a person having reason to believe that a crime or public offense has been committed to make complaint before some magistrate. Section 77-10-1, U.C.A.1953, defines a complaint to be “a statement in writing made to a court or magistrate that a person has been guilty of some designated offense.” This statute, when read in connection with those quoted in the main opinion, makes it the duty to sign a complaint, but the practical application of the law in relation to the necessities of the situation requires that an oral complaint be made first. This is done for the purpose of causing the magistrate to act. If he believes the complaining witness, he will prepare the written complaint himself or direct the county attorney to do so under his direction. He is not compelled to issue a written complaint at all, and he may think that the complaining witness is not being truthful and so want further information before determining whether to issue the complaint or not.
Section 77 — 11-3, U.C.A.1953, reads:
When a complaint is made before a magistrate charging a person with the commission of a crime or public offense, *439such magistrate must examine the complainant, under oath, as to his knowledge of the commission of the offense charged, and he may also examine any other persons and may take their depositions.
This clearly says the magistrate may examine other witnesses and may take their depositions. I fail to see how he would do either without first administering an oath to the witness.
I am convinced that in the orderly and practical operation of initiating criminal proceedings a magistrate has both the right and the duty to examine under oath witnesses other than the complainant.
In the case of State v. Currier, 86 Ariz. 394, 347 P.2d 29, our sister State of Arizona had before it the question of whether a complaint could be signed upon information and belief. Rule 1, subsec. B of their Rules of Criminal Procedure, 17 A.R.S. provided:
When a complaint is made to a magistrate that an offense has been committed, he shall examine on oath the complainant and any witness the complainant produces and any witness subpoenaed by the magistrate. If the county attorney so requests, the magistrate shall subpoena witnesses for examination. The magistrate may take the affidavit of any such witness and cause the affidavit to be subscribed by the person making it.
At page 31 the court said:
It will be seen thereby that when the complaint is laid before the magistrate, if he has any reason to believe that the person who signed it * * * is acting merely on unwarranted suspicions, he has the right, before issuing the warrant, to examine not only the complainant but as many witnesses as he may see fit, and until he is satisfied, not only from the complaint but from the testimony under oath of all of the witnesses whom he desires to call, that there is reasonable ground to believe that the accused has committed the crime charged, he is not required to issue the warrant.
The case of State v. Davie, a Wisconsin case reported in 62 Wis. 305, 22 N.W. 411, was a case involving a misdemeanor. The court said at page 413:
* * * and it is by our own statute that this complaint is to be tested. The language is: “Upon complaint made to any justice of the peace by any constable, or other person, that any such offense has been committed within the county, he shall examine the complainant on oath, and the witnesses produced by him, and shall reduce the complaint to writing, and cause the same to be subscribed by the complainant, and if it shall appear that such offense had been committed, the said justice shall issue his warrant reciting the substance of the complaint, requiring the officer to whom it is directed forthwith to arrest the accused,” etc. The plain meaning is that a verbal or oral complaint is first made, then the justice examines *440the complaint [sic] on oath, and other witnesses produced by; him, if he produces any, and he shall then reduce the complaint to writing and cause it to be subscribed by the complainant; that is, the complainant first mentioned.
Therefore, I cannot agree that the proceeding was nugatory or unknown to the law. Whether a written complaint is legally objectionable and subject to being quashed for failure to state a crime should be of no avail to a witness if he commits perjury in giving his testimony or deposition before the magistrate whose duty it is to inquire into crimes.
The charging part of the complaint which the magistrate secretly had in his possession was as follows:
On this 22nd day of April, A.D. 1965, before me, M. D. JONES, Judge of the City Court within and for Salt Lake City, Salt Lake County, State of Utah, personally appeared Delmar L. Larson, who, on being sworn be me on his oath, did say that John Doe, Jane Doe and Richard Doe on or about the 23rd day of August, A.D. 1963, at the County of Salt Lake, State of Utah, did commit the crime of ACCESSORY TO THE CRIME OF ATTEMPTING TO BRIBE EXECUTIVE OFFICER, in violation of Title 76, Chapter 1, Section 45, Utah Code Annotated, 1953, as follows, to-wit:
That the said John Doe, Jane Doe, and Richard Doe, at the time and place aforesaid, having full knowledge that a felony had been committed, to-wit: the attempted bribery of an executive officer in violation of 76-1-30 and 76-28-3, Utah Code Annotated, 1953, did conceal same from a magistrate;
contrary to the provisions of the Statute of the State aforesaid, in such cases made and provided, and against the peace and dignity of the State of Utah.
While the defendant herein was not mentioned by name in the complaint, he was in fact the very executive officer referred to therein. The fact that there was a complaint in existence was not even made known to the defendant or his counsel, and under our concepts of fair play and due process of law, I think the defendant had a right to be advised that the inquiry was against him.
The taking of a bribe by an executive officer is made a felony by Section 76-28-3. Utah Code Annotated 1953, and the defendant had a constitutional right not to give evidence against himself. Article I, Section 12, Constitution of Utah.
Therefore, this defendant stands in a different position from the ordinary witnesses who give evidence because here he was inveigled into testifying in a case primarily intended to show that he himself had committed a felony. By being tricked into testifying under the circumstances of this case, his constitutional rights were abridged, and the testimony .elicited by the magistrate *441should not be used against the defendant in a trial for bribery nor on a charge of perjury growing out of his testimony. This being so, the question of the materiality of his alleged false statements and of whether, if false, they were corruptly given need not be decided. For these reasons I would reverse the case and discharge the defendant.
CROCKETT, C. J., concurs in the opinion of ELLETT, J.