(dissenting).
I think the District Court erred in concluding (1) that the magistrate’s dismissal barred subsequent indictment, and (2) that the indictment was barred by Constitutions and/or rules.
(1) Article II, § 14 of the New Mexico Constitution permits criminal prosecution pursuant to information or indictment. Defendants in this case were brought to Magistrate Court on an information. • A preliminary hearing is required in this situation and under the facts of this case. Section 36-21-25(b), supra. It was not and could not have been held simply because the prosecutor did not appear. This, and the subsequent discharge, had zero effect on the indictment later procured for use in District Court. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965).
The Rules Governing Criminal Actions in Magistrate Courts are always applicable in Magistrate Courts. The magistrate followed his rules and properly discharged the information. This case is on appeal from the District Court, an appeal taken by the State. The action of the District Court was to quash an indictment brought after the information was dismissed. The District Court’s act of quashing the indictment indicates a belief in that court that a magistrate’s dismissal somehow forecloses the probability-finding function of the grand jury. This simply is not so. State v. Burk, supra.
(2) The bringing of the indictment in this case was in no way barred by either State or Federal Constitution or by rules of these courts.
Defendants have no constitutional right to a preliminary hearing. Williams v. Sanders, 80 N.M. 619, 459 P.2d 145 (1969); Woods v. State, 84 N.M. 248, 501 P.2d 692 (Ct.App.1972). Defendants have no right at all to a preliminary hearing following indictment. State v. Ergenbright, 84 N.M. 662, 506 P.2d 1209 (1973); State v. Salazar, 81 N.M. 512, 469 P.2d 157 (Ct.App.1970). Therefore, the indictment was not barred by any constitutional provision, as the majority appears to similarly conclude.
The indictment, moreover, is not barred by any rules. Even assuming, arguendo, the existence of a violation of § 41-23-20, supra, at the Magistrate Court level, the Rules of Criminal Procedure for the District Courts do not provide for the quashing of the subsequent indictment as a necessary or logical remedy.
The effect of the majority’s decision on appeal is to allow the District Court to quash an indictment, somehow retain jurisdiction of the subject, somehow hold the case open for a preliminary hearing, and somehow allow the hearer to make a finding of probable cause which might be adverse to the finding of the grand jury.
The reason for this state of affairs appears to be a desire on the part of the majority to prevent harrassment of defendants by the prosecutor’s use of a double procedure: quasi-information and actual, but delayed, indictment. The purpose is laudable, but the means applied are questionable. Misapplication of the various rules involved in this appeal will only lead to confusion in the already complex criminal process. There is an adequate remedy available for a court which is understandably displeased at the prosecutor’s actions, namely a contempt proceeding under § 41— 23-52, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The result of this decision creates a new, expensive, time-consuming remedy which serves no purpose.
The majority argues that “other purposes” are served by the preliminary hearing besides the determination of probable cause. This is true neither in New Mexico, nor in all Federal courts (United States, ex rel. Wheeler v. Flood, supra, notwithstanding). State v. Burk, supra; United States v. Foster, 440 F.2d 390 (7th Cir. 1971); United States v. Hasiwar, 299 F.Supp. 1053 (S.D.N.Y.1969). Discovery is in no way a necessary goal of the preliminary hearing and especially need not be in this state, where a clear policy in favor of discovery is promoted by other methods. See especially § 41-23-9, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The defendants in this case were not prejudiced by a denial of a preliminary hearing. The indictment was not barred by any rules of New Mexico courts.
Finally, I note some confusion on the part of the majority as to who is appealing. (See the majority’s part (2).) The State is the appellant. I agree with the State that the District Court erred in quashing the indictment. I would reverse the decision of the District Court and would order the case set on that court’s docket, with no requirement for a preliminary hearing.