I think the writ was properly denied and that the judgment of the District Court should be affirmed. Furthermore, appellant has a plain, speedy and adequate remedy at law by appeal, in the event he should be convicted. If the appellant is acquitted, *Page 352 he will have no occasion to invoke or deny the further jurisdiction of the court.
It must be conceded that there is some confusion among the cases from this court as to just when the writ of mandate (sec. 13-302) or the writ of prohibition, its counterpart, (sec. 13-401) will issue. The annotations to the foregoing sections fully cover the subject without citation here.
In any event, the writ was properly denied, whether the reason be that the petitioner has a plain, speedy and adequate remedy at law, or that the statute is constitutional and valid.
A very different question would confront us, had the district court granted the writ and the state had appealed. A defendant convicted in a probate or justice court has the right of appeal (sec. 19-4037, I.C.A.); whereas, no right of appeal is accorded the state from a judgment of acquittal from the probate or justice court.
In this respect, our statute differs from the corresponding section of the California Code (sec. 1466, Kerr's Penal Code, part II.) There the statute authorizes "either party" to appeal.