Stockwell v. State ( 1977 )

BAKES, Justice.

This is an appeal from an order granting Michael Jerome Stockwell’s petition for a writ of habeas corpus.¹ If the procedural irregularities on both sides are overlooked, the appeal by the state attempts to raise the following issues: (1) whether a magistrate in a preliminary hearing may reduce the charge in a complaint when the evidence presented in a preliminary hearing is capable of sustaining inferences supporting the charge in the complaint; (2) under what circumstances can the prosecuting attorney have a preliminary hearing reopened to submit additional evidence supporting the charge; (3) under what circumstances may a prosecutor in a felony case file a second criminal complaint following his dismissal without prejudice of a first criminal proceeding for the same charge in which the committing magistrate has bound the defendant over to district court on a reduced charge. These questions are presented in the following factual context.

On October 18, 1975, the defendant respondent Michael Jerome Stockwell shot and killed Robert Miller while he was a guest in Miller’s home. On the following day, an investigating police officer filed a criminal complaint charging Stockwell with murder in the second degree. On October 30, a preliminary hearing was held in the magistrate’s division of the district court. At that hearing, Gary Drzymolski, who was an acquaintance of both Stockwell and Miller and a witness to the shooting, testified to the following scenario.

Drzymolski and Stockwell met at Miller’s house at approximately noon on the day of the shooting to replace a water pump on Miller’s car. The three remained in one another’s company throughout most of the afternoon and evening of that day. During that time, between noon and 9:00 p. m., the time of the shooting, they consumed approximately five twelve-packs of beer. Sometime before the shooting, the three of them retired to the recreation room in Miller’s home to listen to the stereo and continue drinking beer. By this time, Drzymolski was “really drunk and from the actions of the other two guys I would say they were just as drunk as I was.”

While they were all in the recreation room, Miller unsheathed a knife and slit Drzymolski’s pants three inches up from the bottom, then moments later he did the same thing to defendant Stockwell’s pants. Stockwell, according to Drzymolski, pulled a gun a moment later and told Miller never to pull a knife on him again, then held the gun close to Miller and fired two shots, neither of which hit Miller. Miller lunged forward at Stockwell and Stockwell kicked at him and fired another shot, this one hitting Miller in the chest and killing him. Stockwell attempted to resuscitate Miller, but his efforts were to no avail.

Four other witnesses were called at the preliminary hearing. One, a pathologist, testified that the cause of Miller’s death was a gunshot wound. Another, the ambulance attendant who had answered the emergency call, testified that a blood sample was taken from the decedent and later analysis showed that the decedent’s blood sample had an alcohol content of .266 percent. The other two witnesses to testify were detectives from the Pocatello police department who had answered the initial call reporting the shooting. None of these witnesses’ testimony concerned the degree of Stockwell’s intoxication either before or after the shooting.

After hearing this testimony and argument by counsel, the magistrate said the following:

“[One of the things] that bothers me is the fact that the deceased had a .266 . blood alcohol content. Mr. Drzymolski testified that they were all three drunk. I have no idea of the capacity of the defendant or either one of them, but I know that 20 bottles of beer over a period of time, if that’s what they did is a great deal of alcohol, it’s an amount equal to almost a fifth of whiskey at least. I suppose the court could make an error and if the court errors I’m going to (inaudible) half of the defendant on this matter. . . . ” Clk.Tr., p. 140.

At this point the prosecutor, anticipating that the magistrate intended to reduce the charge against Stockwell from second degree murder to manslaughter, asked permission of the court to reopen the case:

“I would ask at this time to reopen if the court is going to make a conclusion on the ability of this witness because I have two witnesses that can testify to the ability of the person involved who were there beforehand as to their ability to maneuver and maintain their position even to the testimony of the eye witness. And before the court pronounces any decision in this matter I would ask for permission to reopen if there is any question in the mind of the court as to the properness of this charge.” Id.

The magistrate denied the prosecutor’s motion to reopen on the ground that, “as far as I’m concerned both sides have rested and the arguments have been made.” Id. The magistrate then bound the defendant over to the district court on a charge of voluntary manslaughter and reduced his bond from $50,000 to $15,000.

Up to this point the proceedings were fairly straightforward. But then, on October 30, 1975, the afternoon of the same day of the preliminary hearing, after a discussion about the dismissal of the charge with the district judge, the prosecutor upon his own motion and without notice to Stoekwell or his attorney filed a motion in the district court to dismiss the charge against Stock-well, “without prejudice in the interests of justice.” The motion filed by the prosecuting attorney contained a cryptic, “It is so ordered,” typed on the bottom thereof which the district judge signed.²

On that same day, in an apparent attempt to circumvent the ruling of the magistrate reducing the charge against Stock-well from second degree murder to voluntary manslaughter, a second criminal complaint³ charging Stoekwell with second degree murder was sworn out. Stoekwell was re-arrested on this complaint, and arraigned before a different magistrate who reset bond at $50,000 and set a new preliminary hearing for November 12, 1975.

On Friday, November 7, at 5:00 p. m., Stoekwell, through his attorney, filed the petition for writ of habeas corpus in the district court (District Court Case No. 34012) seeking his discharge from custody on the ground that the actions of the prosecutor in dismissing the first criminal proceeding in which he had been bound over on the lesser charge of voluntary manslaughter and then refiling the same second degree murder charge was in violation of due process under the federal and state Constitutions, and in violation of Rule 5.1(a) and (b) of the Idaho Rules of Criminal Procedure. The transcript indicates that the district judge signed the order for a writ of habeas corpus on Saturday, November 8, 1975. The hearing on the habeas corpus matter was held the following Monday, November 10, 1975, at 4:00 p. m. The record indicates that the prosecuting attorney was not aware of the habeas corpus proceedings until the day of the hearing when he was apparently served with the order and the writ. The record does not indicate that the sheriff, who apparently had custody, was ever served. The record does not indicate whether a return to the writ or an answer to the return, as contemplated by I.C. § 19 — 4201 et seq. was ever filed.⁴

At the hearing held on November 10, at 4:00 p. m., no evidence was submitted by the petitioner on behalf of his claim. The prosecuting attorney advised the court that he had brought the defendant into court as ordered, and the entire hearing consisted of a colloquy between the prosecuting attorney on the one hand and the defendant’s counsel on the other. That colloquy was concerned primarily with the propriety of the prosecuting attorney’s ex parte dismissal of the first criminal proceeding in which the defendant had been bound over to the district court for voluntary manslaughter, and then filing the second criminal complaint for second degree murder for the identical crime which was contained in the first criminal complaint.

On November 20, 1975, the district court entered a memorandum decision and order in which, among other things, it said the following:

(1) Although the prosecutor had additional witnesses present at the preliminary hearing, he had made no showing of the nature of the evidence he expected to elicit from those witnesses;

(2) The prosecutor did not contend he had newly discovered evidence not available to him at the time of the first preliminary hearing (which the court apparently must have felt was the only circumstance in which another complaint could be filed); and,

(3) The procedure followed by the prosecutor of dismissing an action and refiling did violence to Stockwell’s due process rights and was not provided for by the Rules of Criminal Procedure.

The district court concluded that it was “left with no alternative but to grant Petitioner the relief prayed for.” This was done by another cryptic order attached to the end of the memorandum decision, which read as follows:

“Petitioner’s prayer for relief is GRANTED and the Motion to Dismiss and Order of Dismissal affirmed. The Sheriff of Bannock County, Idaho, is hereby directed to release Petitioner from custody.⁵

“IT IS SO ORDERED.

“DATED this 20th day of November, 1975.

“[Signed]_

“District Judge” Clk.Tr., p. 73.

The state has appealed. We reverse.

I

The first issue which must be addressed is the appealability of the order entered by the district court.

The order entered by the district court is not easily categorized for purposes of determining the state’s statutory right to bring this appeal. See footnote 1, supra. If the order is considered to be the granting of a petition for habeas corpus by ordering the release of the petitioner, which it no doubt was intended to be, it is appealable under I.C. § 13-201 as “a final judgment in an action or special proceeding commenced in the [district] court.” In re Blades, 59 Idaho 682, 86 P.2d 737 (1939). See also Coffelt v. State, 92 Idaho 235, 440 P.2d 355 (1968). If it is considered an order dismissing the second criminal complaint, it is probably analogous to dismissal on demurrer and appealable under I.C. § 19-2804(1).

We need not decide, however, how this order shall be categorized for purposes of the statutes governing appeal because this Court has plenary appellate jurisdiction under Art. 5, § 9, of the Idaho Constitution to review any decision of the district court, even if the party bringing the appeal has no statutory right to appeal the decision. State v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975). In Lewis we exercised this authority to clarify important points in the construction of the kidnapping and rape statutes and to prevent further errors of the kind which led to criminal charges being improperly dismissed in that case. In this case we again are presented with important questions concerning the construction of Idaho’s Constitution and its criminal rules and statutes — questions which we note are of a recurring nature, see Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977), and the resolution of which will be of practical importance in the administration of the criminal justice system in this state — which must be resolved to prevent future criminal proceedings from being improperly dismissed or reduced by erroneous rulings of the magistrate or district judge. Accordingly, we choose to review the decision of the district court under our plenary power of appellate review granted by Art. 5, § 9, without reference to the state’s statutory right of appeal.

II

THE DECISION OF THE MAGISTRATE

A. The state argues that the magistrate erred by refusing to allow the prosecutor to reopen the preliminary hearing and call additional witnesses. Neither the statutes nor the Rules of Criminal Procedure set forth rules for calling of witnesses at preliminary hearings or detail the magistrate’s authority to decline to hear testimony from additional witnesses who were present or to prevent a prosecutor from reopening his case to allow him to present additional evidence concerning an element of the crime. Accordingly, we must decide the propriety of the magistrate’s action according to general principles of criminal law governing proceedings in which parties’ substantial rights are not finally determined, but merely preliminarily examined.

First, the overriding concern “in a criminal prosecution is . that justice shall be done. . . . [T]he twofold aim of [the criminal justice system] is that guilt shall not escape or innocence suffer.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). In our opinion, the defendant’s right to a fair preliminary hearing would not have been compromised had the prosecutor been allowed to reopen the preliminary hearing to call additional witnesses whose testimony would be relevant to the question of whether or not the defendant was intoxicated to such a degree that he could not have been able to form the intent necessary to commit murder. The procedures to be followed in a preliminary hearing are not so formal that if a magistrate has decided that the evidence which the prosecutor thought was adequate to show probable cause was not sufficient to convince the magistrate that there was probable cause the prosecutor has lost or forfeited all right to introduce additional evidence upon that issue even when he has additional witnesses who were present and available to testify and can proceed to introduce additional evidence without delay. On the contrary, in this circumstance where the prosecutor and magistrate differed in their assessment of whether the evidence was sufficient to show probable cause concerning one element of the crime and where the prosecutor had other witnesses available to offer additional evidence concerning that element, the magistrate abused his discretion by refusing to allow the prosecutor to reopen the case.

Ill

THE DECISION OF THE DISTRICT COURT

The following are among the factors that the district court considered critical in reaching its decision:

(1) When the magistrate declined to allow the prosecutor to reopen his case for presentation of additional evidence at the preliminary hearing, it was not apparent what kind of evidence he hoped to produce;

(2) The magistrate had not compromised the prosecution’s rights at the preliminary hearing;

(3) The dismissal and the refiling of the charge were not provided for in the Rules of Criminal Procedure and therefore the refiling was in violation of the Rules of Criminal Procedure; and,

(4) The dismissal and refiling of the charges violated Stockwell’s due process rights and if allowed to stand would set dangerous precedent that would allow prosecutors to circumvent adverse rulings of a magistrate at the preliminary hearing.

We disagree with those assessments in this case. As we have already shown in the portion of the transcript quoted at p. 119 supra, the prosecutor had indicated that the subject matter of the additional evidence he wished to introduce at the preliminary hearing concerned Stockwell’s physical impairment due to intoxication, which was certainly relevant to the impairment of his mental faculties, and the magistrate erred in failing to allow the prosecutor to reopen the proceeding.

A

The statutes specifically contemplate that a second criminal complaint may be filed in a felony case following dismissal of the first criminal action. I.C. § 19-1717 provides:

“19-1717. What is not a former acquittal. — If the defendant was formerly acquitted on the ground of variance between the indictment and the proof, or the indictment was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.” (Emphasis added).

This provision is also applicable to criminal proceedings brought by information rather than indictment. See I.C. § 19-1303. I.C. § 19-3506 provides the following:

“19-3506. Effect of dismissal as bar.— An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony.’’ (Emphasis added).

Thus, I.C. § 19-1717 specifically contemplates a dismissal of a proceeding against a defendant in order to bring higher charges against him and I.C. § 19-3506 specifically provides that the first dismissal is not a bar to second prosecution if the offense involved is a felony. Thus, none of Stock-well’s rights under the statutes of Idaho were violated by the second filing.

Neither do the Idaho Rules of Criminal Practice and Procedure necessarily prevent the refiling. I.C.R. 48(a) provides that the prosecuting attorney “may by leave of court” file a dismissal of a complaint. I.C.R. 48(b), like I.C. § 19-3506, provides that a dismissal which “will serve the interests of justice” is not a bar to a second prosecution if the offense is a felony. Thus, the dismissal and refiling are not prohibited either by the statutes or the criminal rules of this state. The motion for dismissal filed by the prosecuting attorney specifically stated that the motion for dismissal was “without prejudice and in the interests of justice,” and the district court’s order stated, “It is so ordered.” In his order in the habeas corpus proceeding the district court again affirmed that first order of dismissal.⁶ Under these circumstances the right of the prosecutor to refile was clearly protected.

The dissenting opinion of Justice Bistline relies strongly upon the language of I.C. § 19-3504 which requires that when the court dismisses the action upon the application of the prosecuting attorney, “the reasons of the dismissal must be set forth in an order entered upon the minutes.” Admittedly, the motion of the prosecuting attorney set out no grounds other than “in the interests of justice,” and the record contains no minute entry setting out the court’s reasons for the dismissal as required by I.C. § 19-3504. While the district court may have erred, as the dissent argues, in failing to set out the reasons for dismissal in the minutes, it does not follow that the order is thus void. The cases of People v. Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193 (1975), and Salt Lake City v. Hanson, 19 Utah 2d 32, 425 P.2d 773 (1967), relied upon by the dissent, certainly do not so hold.

In the Salt Lake City case the city brought a proceeding comparable to a common law writ of certiorari, to appeal the dismissal of seven complaints which charged violations of a Salt Lake City ordinance. The judge had dismissed the complaints because they were signed by a police officer other than the arresting officer, and then only by a facsimile signature. The city argued that not only was the dismissal erroneous, but that the trial court had failed to set out his reasons in the court minutes. The Utah Supreme Court held first that the particular officer’s facsimile signatures on the complaints were in compliance with Utah law, even though he was not the arresting officer. Additionally, the court held that the trial judge should have set out the reasons for the dismissal in the minutes. The court then “reversed” the decision of the trial court on both grounds, thus reinstating (not terminating, as in this case) the criminal proceedings.

In the other case relied upon in the dissent, People v. Orin, supra, the trial court had, over the objection of the prosecuting attorney, dismissed the first two counts of the information when the defendant pleaded guilty to a third count. The trial court set out no reasons in the minutes as required by the California statute which is substantially the same as our I.C. § 19-3504. The record showed that the trial court was making a “plea bargain” for the prosecutor, over his objection. The case was on direct appeal by the state from the order of dismissal. The court did say what thé dissenting opinion quotes, post at MO-141, but it also said the following:

“While it is probably true that dismissals under section 1385 are frequently ordered on mere statements of ‘grounds’ (i. e., ‘in furtherance of justice’) without any statement of reasons, this situation appears in a different light when the People oppose the dismissal and raise the issue on appeal.

“As the court said in People v. Curtiss (1970) 4 Cal.App.3d 123, 127, 84 Cal.Rptr. 106, 109: ‘We recognize that throughout the state dismissals occur every day wherein the minutes do not set forth the reasons. A defendant, for example, is charged with four counts of burglary, pleads guilty to one count, the district attorney moves to dismiss the remaining three counts and the judge grants the motion without specifying the reasons in the minutes. In such a case, however, it is the prosecutor’s own case which he is moving to dismiss and in so doing he is acting upon his own responsibility. Despite the defective procedure, no harm is done because the prosecutor obviously would not appeal from the order of dismissal.’ ” 533 P.2d at 198, n. 10.

“Dismissals under section 1385 may be proper before, during and after trial. (People v. Superior Court (Howard), supra, 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 446 P.2d 138.) Before trial, such dismissals have been upheld where designed to enable the prosecution ‘to obtain further witnesses, to add additional defendants, to plead new facts, or to plead new offenses . . . .’ (People v. Silva (1965) 236 Cal.App.2d 453, 457, 46 Cal.Rptr. 87, 90; see also, Arnold v. Williams (1963) 222 Cal.App.2d 193, 196, 35 Cal.Rptr. 35.)” 533 P.2d at 199.

“We do not say that the People’s approval is in every instance indispensable to a dismissal under section 1385 (see, e. g., People v. Superiod [Superior] Court (Howard), supra, 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 446 P.2d 138) for to so hold would curtail or perhaps abrogate the sentencing discretion resident in the court, but such discretion must be reasonably exercised and where the court’s action lacks reason it may be invalidated upon timely challenge." 533 P.2d at 201.

In this case the defendant Stockwell did not seek to challenge and reverse the action of the district court in dismissing the first proceeding because of a failure of the court to set out the reasons for the dismissal in the minutes, and thus to seek reinstatement of the dismissed action as the courts did in Salt Lake City v. Hanson, supra, and People v. Orin, supra. Rather, Stockwell, in his habeas corpus proceeding, also filed a “motion to dismiss with prejudice” in which he not only affirmed the order of dismissal in the first proceeding, but also sought to amend the order of dismissal to make it “with prejudice.” Neither People v. Orin, supra, nor Salt Lake City v. Hanson, supra, are authority for permitting the defendant Stockwell to argue that the district court erred in failing to set out the reasons for the dismissal in the minutes and at the same time assert that the dismissal should not be set aside as the prosecutor had requested, but should be “with prejudice.” Had the defendant Stockwell argued that the failure to set out the reasons for dismissal in the minutes was grounds for setting aside the dismissal of the first action and reinstating that action, then the Salt Lake City case would have supported that argument. However, neither that case, nor People v. Orin, supra, support his contention that he should now be released from all charges. The district court erred when it granted the writ releasing the defendant.

B

The next issue is whether the dismissal and refiling violated the defendant’s rights under the due process clauses of the state or federal Constitutions. The filing of a second criminal action following dismissal of the first criminal action after preliminary proceedings is not a per se violation of the due process clause of the federal Constitution. United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. denied 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974). See DeMarrias v. United States, 487 F.2d 19 (8th Cir. 1973), cert. denied 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974); Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied 384 U.S. 976, 977, 86 S.Ct. 1869, 1871, 16 L.Ed.2d 685 (1966). Neither have our sister states interpreted the due process or double jeopardy clauses of their own constitutions to make this practice a per se violation of the defendant’s rights. E. g., the following cases have allowed the state to file a second complaint accusing a person of a crime after the original complaint was dismissed, Skinner v. Superior Court, In and For Pima County, 475 P.2d 271 (Ariz.1970); Wilson v. Garrett, 106 Ariz. 287, 448 P.2d 857 (1969) (refiling before a different magistrate prohibited by statute, but refiling before same magistrate allowed); In re Russell, 12 Cal.3d 229, 115 Cal.Rptr. 511, 524 P.2d 1295 (1974) (dicta citing with approval holding in People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609 (1973), that state may prosecute under an indictment after a complaint against the defendant has been dismissed); State v. Holloway, 219 Kan. 245, 547 P.2d 741 (1976); Walters v. Williams, 474 P.2d 661 (Okla.Cr.1970); Nicodemus v. District Court of Oklahoma County, 473 P.2d 312 (Okla.Cr.1970); State v. Weiss, 73 Wash.2d 372, 438 P.2d 610 (1968); Richmond v. State, 554 P.2d 1217 (Wyo.1976); see also cases collected in footnote 3 of Richmond v. State, supra, 554 P.2d at 1222; while the following cases have allowed the state to prosecute under an indictment returned following the dismissal of a complaint, State v. Gonzales, 111 Ariz. 38, 523 P.2d 66 (1974); State v. Elling, 19 Ariz.App. 317, 506 P.2d 1102 (1973); People v. Uhlemann, supra; State v. Peavler, 88 N.M. 125, 537 P.2d 1387 (1975); Simpson v. Sheriff, Clark County, 86 Nev. 803, 476 P.2d 957 (1970). Like the federal government and our sister states, we do not construe the due process clause of the Idaho Constitution to create a per se prohibition against the refiling of criminal charges after the charges have first been dismissed with approval of the court and without prejudice. Cf. State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968); State v. McKeehan, 49 Idaho 531, 289 P. 993 (1930).

That is not to say, however, that dismissal and refiling of criminal complaints by the prosecutor done for the purpose of harassment or delay or forum-shopping cannot be a violation of the due process clause. We quote approvingly the following passage from Nicodemus v. District Court of Oklahoma County, supra:

“While the present statutes do not make dismissal of a prosecution — at the preliminary examination stage — a bar to further prosecution for the same offense, this Court views critically the practice of ‘shopping’ among magistrates or the repeated refiling of a charge until a favorable ruling is obtained. Without the production of additional evidence, or the existence of other good cause to justify a subsequent preliminary examination, such a practice can become a form of harassment which may violate the principle of fundamental due process and equal protection of the law, as announced by the United States Supreme Court. This is not to say that when new evidence becomes available or when the prosecutor believes — in good faith — that the magistrate committed error, the charge should not be refiled; but absent such circumstance, the continued refiling — numerous times — of a charge which has been dismissed by a magistrate is not to be desired. The facts of the instant case do not approach such an offensive degree to be violative of fundamental fairness. Accordingly, this Court holds that petitioner is not entitled to a writ of prohibition, for as stated before, under existing statutes, dismissal of a prosecution at a preliminary examination is not a statutory bar to further prosecution for the same offense regardless of the ‘judicial title’ of the official sitting as examining magistrate.” 473 P.2d at 316. (Emphasis added).

In this case the prosecutor had cause to bring a second criminal complaint against Stockwell based upon his good faith belief that the magistrate erred in the preliminary hearing, both as to the evaluation of the evidence admitted and the magistrate’s failure to allow the prosecuting attorney to present more evidence. A review of the record clearly discloses that the prosecuting attorney was not judge shopping.⁷ Because the prosecutor had a good reason for filing the second criminal complaint, the district court erred in granting the petitioner relief on his habeas corpus petition.

Accordingly, we reverse the judgment of the district court. We emphasize that our holding is a narrow one based upon the following circumstances of this case: (1) that the magistrate erred by preventing the state from reopening and introducing additional relevant evidence at the preliminary hearing; (2) that the record in this case does not suggest that the dismissal and refiling of the charge was done for harassment or delay or because the prosecutor had made no effort to present available evidence at the first preliminary hearing; and (3) the prosecutor followed steps in refiling the charge which were not prohibited by the statutes or criminal rules in felony cases.

The second criminal complaint, which apparently is still pending,⁸ is freed from the constraints of the district court’s habeas corpus order. The bond which was in effect on November 20,1975, the date of the habeas corpus order, is reinstated, subject to further order of the court below.⁹

The order of the district court granting the petitioner’s writ of habeas corpus is reversed and the cause remanded with directions to quash the writ.

MePADDEN, C. J., concurs. DONALDSON, J., concurs in result.

1 . The petition was titled in the criminal case, “State of Idaho, Plaintiff, v. Michael Jerome Stockwell, Defendant, ” but was filed in the Bannock County District Court as Civil No. 34012.

2 . The district judge “expressed misgivings concerning such action [the dismissal of the reduced charge] but again suggested that the Prosecutor research the matter and if he still wished the Order signed he would be accommodated.” Clk.Tr. at 68.

3 . The complaint in the first criminal proceeding in the magistrates court was filed as Bannock County Magistrates Case No. 8188. The second complaint was Case No. 8219.

4 .The prosecuting attorney apparently had at most a few hours to read the papers which were served on him and to arrange to have Stoekwell in court by 4:00 p. m. that Monday. The failure of the record to disclose the pleadings which should ordinarily accompany a habeas corpus proceeding makes the function of this Court more difficult. However, in view of the manner in which the petition was filed and served by the petitioner, and handled by the court, the blame can hardly be attributed to the state.

5 . The state has apparently misunderstood the meaning of that portion of the order which reads, “. . . and the Motion to Dismiss and Order of Dismissal affirmed,” thinking that by that statement the district judge had dismissed the second criminal complaint which had been filed in the magistrates court as Case No. 8219. At the time that Stockwell filed his Petition for Writ of Habeas Corpus he also filed in the district court case No. 34012 a pleading entitled “Motion to Dismiss With Prejudice” in which he asked that the order of dismissal “hereunto entered in the above entitled matter on October 20, 1975 [Magistrates Case No. 8188], be amended in that such charge be dismissed with prejudice; that to allow the Prosecutor to dismiss the voluntary manslaughter charge without prejudice and at the same time refile a second Complaint of Second Degree Murder against the defendant on the same facts and circumstances, denies said defendant due process of law and is contrary to fundamental fairness.” Clk.Tr., p. 49. At the hearing on the Petition for Writ of Habeas Corpus, and presumably also on this Motion to Dismiss With Prejudice, the prosecuting attorney suggested to the court that if he had been in error to dismiss the first action and then refile, that he be permitted to reinstate the first proceeding which the magistrate had reduced to voluntary manslaughter, and proceed on the voluntary manslaughter charge. The statement in the district judge’s November 20, 1975, order, “. . . and the Motion to Dismiss and Order of Dismissal affirmed,” is apparently a denial of this request by the prosecuting attorney.

6 . At the time of the hearing on the habeas corpus, the prosecuting attorney was requesting the court to reinstate the first criminal proceeding, No. 8188, and permit the state to go to trial on the voluntary manslaughter charge, while the defendant was arguing that the order of dismissal in No. 8188 not be set aside but should be made with prejudice rather than without prejudice as the original district court order provided. The statement in the district judge’s habeas corpus order of November 20, 1975, indicates that he denied the request of both parties, and let the order of dismissal without prejudice in No. 8188, stand.

This action of the district court is of more than passing interest in view of the argument made by Justice Bistline in his dissent to the effect that because the district judge did not make the necessary findings required by I.C. § 19-3504 at the time that he entered the order of dismissal, that the dismissal is of no force and effect. Presumably, then, the first criminal case, No. 8188, would still be pending on the voluntary manslaughter charge. On this point it would appear that Justice Bistline is siding with the prosecuting attorney who requested that the order of dismissal of the first action, No. 8188, be set aside and that proceeding be reinstated. It would also seem to necessarily follow that if, as the dissenting opinion suggests, the order of dismissal of the first action No. 8188 was “fatally defective,” post at 136-137, and that the district court lacked jurisdiction to enter such an order of dismissal, post at 135, that therefore the district court erred in granting the habeas corpus petition because the first proceeding would still have been pending against the defendant, and on November 20, 1975, he would have been legally detained. Given that rationale in the dissenting opinion it is difficult to understand how the dissent can nevertheless argue in favor of the granting of the habeas corpus petition.

7 . At the hearing before the district court on November 10, 1975, two days before the day set for the preliminary hearing on the second complaint, the prosecuting attorney stated:

“While it may appear that we are forum shopping, it was not intended to be that, and I did not request a different forum. Apparently a different judge was assigned on this next hearing, but I did not request it, and I would not have objected had the same judge reheard the matter, because I would have intended to put on additional evidence and particularly this witness who is outside the state and would be available for this new hearing.” Rptr. Tr., p. 12.

At another point in the record the prosecuting attorney made clear his intention:

“Now, I don’t know why it was, it wasn’t upon my request that a different magistrate received the new proceeding. I certainly did not request it, and I would have had no objection to Judge Bennett rehearing the matter. I think he is a fine magistrate and, although we don’t always see eye to eye, I think that’s — once in a while it happens between the counsel and the judge, and that’s the prerogative of the judge and I think counsel, but I did not request that a different forum or different court rehear the matter.” Rptr. Tr., p. 11.

8 . When the district court entered its order in the habeas corpus proceeding on November 20, 1975, it . Granted [the] Petitioner’s Prayer for relief . .” and directed the sheriff of Bannock County to release the Petitioner from custody.” While the habeas corpus petition did not actually contain a prayer for relief, the primary thrust of the petition was to restrain the magistrate’s court in the second proceeding, Case No. 8219, from conducting a second preliminary hearing. The habeas corpus order did not purport to dismiss the second criminal complaint, Case No. 8219, and no other order to that effect is in the record.

9 . At the November 10, 1975, hearing on the habeas corpus petition, when the district judge was advised that a preliminary hearing was set for two days later on the second criminal complaint (Case No. 8219), the district judge, with the concurrence of both counsel, vacated the preliminary hearing. Counsel for the defendant stated that “. .we would like to get this matter [the habeas corpus petition] resolved before the preliminary.” Also without objection from the prosecuting attorney, the bond was reduced from $50,000, at which the second magistrate had set it, to $15,000, the amount to which the first magistrate had reduced it when he bound the defendant over on the voluntary manslaughter charge. However, the district judge indicated that the $15,000 bond was “. . subject to increase if the facts so indicate.” Rptr. Tr., p. 16.