(dissenting). This case involves the rights of a person after arrest and before trial.
The specific issue presented is whether sec. 971.01(1), Stats. 1987-88, permits the state to charge a person after the preliminary examination with a crime not supported by any evidence adduced at the preliminary.
The state charged four crimes in the complaint. At the preliminary examination the state moved, without opposition, to dismiss three of these charges. The state conceded in the circuit court that it had introduced evidence at the preliminary examination of only one crime.1 *460After the preliminary the state filed the information charging the accused with several crimes.
*461The majority opinion upholds the state's charging process in this case, concluding that a district attorney *462may charge a person with any crime that "is not wholly unrelated" to the transactions or facts considered at the *463preliminary examination, irrespective of whether direct evidence concerning the crime is produced at the preliminary examination. Majority at page 457. Thus the majority opinion abrogates protections the legislature has expressly granted to defendants for more than one hundred years and overturns more than one hundred years of case law. I would affirm the decision of the court of appeals and the order of the circuit court and therefore dissent.
HH
The majority opinion's interpretation of sec. 971.01(1) conflicts with the words of the statute. From 18752 until the present day, the legislature has directed the district attorney to file an information "according to the facts" or "according to the evidence" at the preliminary examination.
The governing statute, sec. 971.01(1), Stats. 1987-88, provides:
*464The district attorney shall examine all facts and circumstances connected with any preliminary examination . . . and. . . shall file an information according to the evidence on such examination . . .. (Emphasis added.)
Section 971.01(1) does riot authorize the district attorney to file an information including a charge for which no evidence was adduced at the preliminary examination. If the legislature intended to state the rule as the majority opinion holds, it would have done so. It has not.
II.
The majority opinion's interpretation of sec. 971.01(1) contravenes the legislative policy underlying the preliminary examination. Examining the nature and purpose of the preliminary examination the court concluded in Theis v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922), that
the object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.3
I conclude that the purposes of the preliminary are better achieved by interpreting the statute as it is writ*465ten. Requiring a factual basis in the prelimination examination for each crime charged in the information helps ensure that both the defendant and the state will be spared the expense of a long and costly trial. Requiring a factual basis for each crime charged is a crucial step in protecting all citizens from hasty, malicious, improvident, or oppressive prosecutions.
The legislative policy of requiring a factual basis for each charge in the preliminary examination appears not only in sec. 970.03(1) but also in secs. 970.03(10)4 and 970.04,5 Stats. 1987-88. While the latter two provisions are not directly involved in this case, they express the legislative policy that every criminal charge should be based on facts adduced at the preliminary examination.
Section 970.03(10) provides that the court shall dismiss any count in a multiple count complaint if at the end of the preliminary no probable cause exists. The section further provides that the facts arising out of any count the court dismisses shall not be the basis for a count in any information filed pursuant to chapter 971. Sections 970.03(10) and 970.04 provide that if a district attorney wishes to charge the count that the court has dismissed, the district attorney must file another complaint if he has or discovers additional evidence. The *466court must conduct a preliminary examination on the new charge.
I conclude that the majority opinion's holding does not comport with the legislative policy underlying secs. 971.01(1), 970.03(10) and 970.04, Stats. 1987-88.
HH HH I — Í
The majority opinion's interpretation of sec. 971.01(1) conflicts with over 100 years of case law interpreting and applying sec. 971.01(1) and its precursors. The court first considered the powers and duties of the district attorney in filing an information in 1877. In State v. Leicham, 41 Wis. 565, 574-75 (1877), this court interpreted a forerunner of sec. 971.01(1) as permitting the district attorney to charge in an information only those crimes with an evidentiary or factual basis in the record of the preliminary examination.6
Since 1877 this court has consistently followed and applied the rule announced in the Leicham case in an unambiguous line of cases.7 As this court stated in 1938, *467"the statute has been considered many times by this court, and it has always been held that it means what it says." Mark v. State, 228 Wis. 377, 383, 280 N.W. 299 (1938). I could not find a case, nor has the majority set forth any case, that has applied the rule the majority opinion adopts. The cases have applied the statute to require a factual or evidentiary basis in the preliminary examination for a charge to be included in the information.
The majority opinion nevertheless points to two cases to support its holding that the statute does not mean what it says but rather permits a prosecutor to include charges in an information without a factual or evidentiary basis: State v. Fish, 20 Wis. 2d 431, 438,122 N.W.2d 381 (1963), and Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974). I find the majority opinion's reliance on these two opinions unpersuasive.
The majority opinion places heavy emphasis on language in Fish that briefly summarized the law pertaining to filing additional charges in an information as follows:
The state in its information may allege acts in addition to those advanced on preliminary hearing so long as they are not wholly unrelated to transactions or facts considered or testified to at the preliminary. Mark v. State, 228 Wis. 2d 377, 280 N.W. 299 (1932). Fish, supra, 20 Wis. 2d at 438.
The majority opinion suggests that this single sentence in Fish represents a significant break with precedent. Upon examination of the sentence, I conclude that the Fish opinion does not support the majority's holding.
*468Nothing in the Fish opinion suggests that the court was adopting a new interpretation of sec. 971.01(1). The Fish case cites the Mark case as the source of the sentence upon which the majority opinion relies. If the sentence from Fish is read in the context of the language of the Mark decision, it is clear that the Fish case does not support the majority's holding in this case. The Mark court stated:
[The] statute has been considered many times by this court, and it has always been held that it means what it says. It clearly authorizes the district attorney to file an information setting forth the crime committed according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not. In Porath v. State, 90 Wis. 527, 63 N.W. 1061, that statute [citation omitted] was discussed. In that case a plea of abatement was interposed on the ground that the defendant had not had a preliminary examination on a certain count of the information. The plea in abatement was overruled and full force and effect given to the statute. [Citations omitted.]
From all of these cases it clearly appears that sec. 355.17, Stats., permits the district attorney to file an information containing such charge as the facts adduced at the preliminary examination warrant. Such an information must, of course, be based upon the facts brought out on the preliminary examination. It would be improper for a district attorney, against the objection of a defendant, to file an information charging a crime wholly unrelated to the transactions or facts considered or testified to at the preliminary examination. 228 Wis. 383-84. (Emphasis added.)
*469Relying on numerous cases beginning with Porath, the Mark court concluded, as all prior cases had, that the district attorney may file an information containing such charges only as the facts adduced at the preliminary examination warrant.
The Fish court paraphrased Mark by omitting the lengthy statements requiring a charge to be based on the facts and by changing Mark's statement describing improper charges that were prohibited by case law to a statement in Fish describing proper charges that could be filed in an information by a district attorney. When we compare the language of the two opinions in their entirety, it is clear that Fish sought to restate Mark and its precedent without changing the meaning of the test applied by the court.
The actual holding in Fish further undercuts the majority opinion's interpretation of the case's significance. In Fish, the court looked at the facts adduced at the preliminary, not whether the charge was not wholly unrelated to the transactions considered at the preliminary. The Fish court thus applied the Mark and Leicham rule, not the rule the majority opinion sets forth. The Fish case, and the Mark case upon which Fish relies, are diametrically opposed to the majority opinion's holding and interpretation of the statute.
The majority opinion also relies on what it characterizes as the "holding" in Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974), namely that "in a multiple-offense transaction case, once the defendant has been bound over for trial on at least one count relating to the transaction, the prosecutor may in the information charge additional counts not wholly unrelated." Majority at page 453. See also page 456.
Contrary to the majority's assertion, the Bailey court's adoption of the Fish language is clearly dicta, nqt *470the holding of the case. In Bailey, the court extensively examined the evidence presented at the preliminary hearing and held that "[t]here was ample evidence presented at the preliminary to support a finding of probable cause as to each of the counts contained in the information." See Bailey, supra, 65 Wis. 2d at 341-43.
Furthermore, the Bailey case does not, as the majority opinion asserts, overrule State v. Leicham, supra, 41 Wis. 565, 574-75 (1877), expressly or sub silentio. Bailey relies on Leicham: Bailey cites Fish; Fish cites Mark; Mark cites Porath, and Porath cites Leicham. The Leicham case requiring district attorneys to bring charges based only on the facts adduced at the preliminary is implicitly affirmed by the Bailey case.
The dicta in Bailey misinterpreted Fish as supporting the statement that "charges in addition to those advanced at the preliminary hearing 'so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary.' " Bailey, supra, 65 Wis. 2d at 341. As I explained above, Fish does not support this statement.
Thus from Leicham (1877) until Bailey (and thereafter) this court has interpreted sec. 971.01(1) as "meaning what it says": all charges filed in the information must be supported by facts or evidence adduced at the preliminary examination.
Finally, the majority opinion's attempt to undermine the post -Bailey decisions which have consistently reaffirmed the Leicham rule, see majority at 453-456, is unpersuasive.
The majority opinion dismisses the court's analysis in Whitaker v. State, 83 Wis. 2d 368, 373, 265 N.W.2d 575 (1978), as a "cursory reference" to the statute. Majority at 454. In Whitaker, the court considered Milwaukee county prosecutors' practice of holding the *471arraignment immediately after the preliminary examination and reading the transcript of the preliminary examination after the arraignment and amending the information to add charges based on evidence adduced at the preliminary. The court implicitly affirmed the practice, recognizing that the "statute provides that the prosecuting attorney shall file an information based on the evidence elicited at the preliminary examination." Whitaker, 83 Wis. 2d at 373.
Again, in Lofton v. State, 83 Wis. 2d 472, 266 N.W.2d 576 (1978), Chief Justice Beilfuss (the author of the Bailey decision), writing for the court, cited Marks and summarized sec. 971.01(1) as follows: "A district attorney is permitted to file an information containing such charges as the facts adduced at the preliminary examination warrant. The information must be based upon the facts brought out on the preliminary examination." Lofton, supra, 83 Wis. 2d at 482.
The majority opinion contends that the court was misguided in Lofton and failed to consider the statute "in the broad context of cases such as Bailey and its predecessors." Majority at 454.1 conclude that the language and holdings of Lofton and the other cases, viewed in narrow or broad context, support the Leicham rule, not the rule set forth in the majority opinion.
Despite the majority opinion's unsuccessful attempts to explain it away, State v. Hooper, 101 Wis. 2d 517, 305 N.W.2d 79 (1981), correctly interpreted Bailey, Mark and Whitaker as "clearly establishing] . . . that the statute [971.01, Stats.] provides that the prosecuting attorney shall file an information based on the evidence elicited at the preliminary examination." 101 Wis. 2d at 535. See also Hooper, supra, 101 Wis. 2d at 536, 537, 539. The Hooper court applied the Leicham rule and held "that the evidence introduced at the pre*472liminary hearing provides a factual basis upon which the district attorney may have reasonably concluded that the crime of second degree murder was committed." Id. at 543.
This court has steadfastly adhered to the teachings of Leicham. The majority opinion overrules an extensive body of law interpreting an old statute. If the statute needs to be changed, that is a task of the legislature, not this court.8
For the reasons set forth, I would affirm the order of the circuit court and the decision of the court of appeals. Those courts properly concluded that "sec. 971.01(1), Stats., requires the prosecutor to file an information containing only charges based on evidence presented at the preliminary hearing." State v. Burke, 148 Wis. 2d 125, 129, 434 N.W.2d 788 (Ct. App. 1988).
At a hearing in Dane County Circuit Court, the Honorable Mark A. Frankel, presiding, and Ms. Judy Schwaemle, the prosecutor, engaged in the following exchange:
THE COURT: . . . Am I correct, Ms. Schwaemle, that the defendant's statement relied on at the preliminary examination or his confession makes no reference to any of the other charges set forth in the Information other than one act of anal intercourse with the victim?
MS. SCHWAEMLE (Assistant District Attorney): That's correct.
THE COURT: And that there was no additional evidence adduced of these other charges at the time of the preliminary examination?
MS. SCHWAEMLE: That's correct.
Motion Hearing Transcript, February 5, 1988, at 15. See also *460State's Brief filed in the circuit court in Support of State's Motion to Reconsider, February 9, 1988, at 2.
Ms. Schwaemle was the assistant district attorney representing the state at the preliminary examination, in the hearing on defendant's requesting the circuit court to strike counts II through V, and in the hearing on the state's motion requesting the circuit court to reconsider its decision to strike counts II through V.
Ms. Schwaemle clearly and repeatedly advised the circuit court in both oral and written presentations that the police officer's recitation of the defendant's statement to the police, the sole evidence at the preliminary examination, supported count I only; that the victim's statements of other acts not presented in evidence at the preliminary examination were the basis of counts II through V; that the evidence presented at the preliminary examination supported only count I; and that the offenses described in counts’ll through V "occurred within an hour or two of count I," not, as the state's brief on appeal asserts, at the same time as count I. See Record 32:8, 13-14,15, 47-48.
The State's Brief in Circuit Court on the state's Motion to Reconsider, Record 22:2, relates the assistant district attorney's position as follows: The alleged victim's "statement details at least five separate acts of sexual assault, which conduct formed the basis for counts two through five of the Information. These acts, as outlined in the police reports, occurred at the same place as count one, within an hour or two of count one, and involved the same participants."
The state's brief filed by the attorney general's office on appeal, the majority opinion, and the concurring and dissenting opinion contend that the evidence at the preliminary examination supports counts II and IV. This contention contravenes not only the evidence presented at the preliminary examination but also the assistant district attorney's description of the evidentiary basis for counts II and IV of the Information that she signed, the assistant district attorney's representations to the circuit court of *461the evidence she was relying on in charging those counts, and the circuit court's conclusion.
Upon reading the entire record — that is, the transcripts of the preliminary hearing, of the hearing on the defendant's motion to dismiss counts II through V, and of the hearing on the state's motion to reconsider the circuit court's decision to dismiss counts II through V and the memoranda submitted to the circuit court by counsel — I conclude that the record supports the assistant district attorney's and the circuit court's conclusion that the evidence adduced at the preliminary examination does not support counts II through V.
The information set forth five counts alleging that the defendant had sexually assaulted a person over the age of 12 and under the age of 16 on August 18, 1987 (except for count III which is undated):
Count I. Sexual intercourse (penis to anus)
Count II. Sexual intercourse (penis to vagina)
Count III. Sexual intercourse (penis to anus)
Count IV. Sexual contact (touching breast)
Count V. Sexual contact (touching penis to mouth)
Regarding count I, the state and the defendant agree that evidence was adduced at the preliminary examination to support this count.
Regarding count II, the state's brief on appeal concedes that there was no evidence at the preliminary examination to support this count. The officer testified that the defendant stated (in his oral statement of confession) that he touched the victim's vaginal area just before committing anal intercourse. Sec. 939.22(36) defines sexual intercourse as requiring vulvar penetration, and sec. 939.22 (34) defines sexual contact as the intentional touching of intimate parts of another person. The state's brief on appeal asks that the state be allowed to amend count II to charge sexual contact rather than intercourse. See Brief and Appendix of Plaintiff-Appellant, p. 26, n. 2. No amendment is needed because the *462record shows that the assistant district attorney charged count II, not on the basis of the testimony at the preliminary examination, but on the victim's statement about sexual intercourse "within an hour or two" of the commission of count I, evidence not presented at the preliminary examination.
Regarding counts III and V, the state's brief on appeal concedes that no evidence was introduced at the preliminary examination on these counts.
Regarding count IV, the state's brief on appeal correctly asserts that the officer testified that the defendant said he fondled the defendant's breasts just before committing anal intercourse. The record shows that the assistant district attorney charged count IV, not on the basis of the testimony at the preliminary examination about fondling, but on the victim's statement that the defendant touched her "within an hour or two" of the commission of count I, evidence not presented at the preliminary examination. The police officer testifying at the preliminary examination about the defendant's statement upon arrest (which was not introduced) and the assistant district attorney, in contrast to the state's (attorney general's) brief on appeal, apparently viewed the defendant's touching the breasts and vaginal area as part of a single, uninterrupted anal intercourse charged in count I and not as separate offenses. State v. Eisch, 96 Wis. 2d 25, 31, 34, 291 N.W.2d 800 (1980); State v. Hirsch, 140 Wis. 2d 468, 474-75, 410 N.W.2d 638 (Ct. App. 1987) (a defendant ought not to be charged, tried or convicted for offenses that are substantially alike when they are part of the same episode).
The assistant district attorney's repeated statements in open court and in memoranda to the circuit court do not suggest that the "Assistant District Attorney misunderstood the judge's question, or simply did not recall the facts of record — an understandable lapse given the workload of the Dane County District Attorney's office," see page 475 (Bablitch, J. dissenting in part, concurring in part). The assistant district attorney well understood her case and the charges of sexual intercourse and conduct *463she was prosecuting against the defendant. The assistant district attorney signed the information. She knew the evidence upon which she was relying when she signed the information. The district attorney explained she wanted to spare the victim from testifying at the preliminary examination and intentionally introduced evidence of only count I, thinking that this evidence was sufficient to justify additional charges in the Information that were not wholly unrelated to the evidence considered at the preliminary.
It shall be the duty of the district attorney ... to inquire into and make full examination of all facts and circumstances connected with any case of preliminary examination . . . and to file an information setting forth the crime committed according to the facts ascertained on such examination and from written testimony taken thereon, whether it be the same offense charged in the complaint on which the examination was had or not. . .. Ch. 190, Laws of 1875 (emphasis added).
Quoted with approval in State v. Dunn, 121 Wis. 2d 389, 395, 359 N.W.2d 151 (1984). See Note, The Function of the Preliminary Hearing in Federal Pretrial Procedure, 83 Yale L. J. 771, 779-83 (1974). ,
Section 970.03(10), Stats. 1987-88, provides: "In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. Section 970.04 shall apply to any dismissed count."
Section 970.04, Stats. 1987-88, provides: "If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if he has or discovers additional evidence."
In Leicham the court recognized that ch. 190, Laws of 1875, which gave the prosecutor's greater latitude to file additional charges in the information regardless of the ruling of the examining magistrate in a preliminary hearing, nevertheless required that the prosecutor could file a charge only if there was a factual basis for the offense within the testimony or on the record.
The court stated: "Manifestly, under the statute . . . the district attorney may exhibit an information against the accused, and bring him to trial, for any criminal offense which the testimony taken on the examination shows that he has committed." Leicham, supra, 41 Wis. at 574.
See also, e.g., Porath v. State, 90 Wis. 527, 534, 63 N.W. 1061 (1895); Secor v. State, 118 Wis. 621, 95 N.W. 942 (1903); Dahlgren v. State, 163 Wis. 141, 143, 157 N.W. 531 (1916); Mark v. State, 228 Wis. 377, 383-84, 280 N.W. 299 (1938); Whitaker v. *467State, 83 Wis. 2d 368, 373, 265 N.W.2d 575 (1978); Lofton v. State, 83 Wis. 2d 472, 482, 266 N.W.2d 576 (1978); State v. Hooper, 101 Wis. 2d 517, 534, 305 N.W.2d 110 (1981); State v. Michels, 141 Wis. 2d 81, 88, 414 N.W.2d 311 (Ct. App. 1987).
Art. I, sec. 8 provides that "no person shall be held to answer for a criminal offense without due process of law . . .." The court held in Rowan v. State, 30 Wis. 129 (1872), that the words "due process of law" do not require a presentment or indictment by a grand jury; a preliminary examination constitutes due process of law. This court noted in State v. Dunn, 121 Wis. 2d, 389, 394, 359 N.W.2d 151 (1984), that although this court has said that the right to a preliminary examination is a statutory, not a constitutional, right, certain federal constitutional rights might be implicated in the preliminary examination. Id. at 394, n. 6. The parties have not raised or briefed any constitutional issues.