This is an appeal from an order quashing an alternative writ of prohibition. Appellant Clark was charged in a cоmplaint with having committed forgery and sought and obtained an alternative writ prohibiting the magistrate from conducting a preliminary hearing or proceeding further on the felony charge. Later the alternative writ was quashed and this aрpeal results. We affirm.
The alleged crime took place on February 3, 1973. On August 28, 1975, the Bannock County Prosecutor, by letter, requested the Attorney General of the State of Idaho to investigate the circumstances and if necessary to prosecute. The prosecutor, in his private capacity as an attorney, had repre
sеnted
Clark was later thаt day admitted to bail on his own recognizance and a preliminary hearing was scheduled for February 10, 1976. A Deputy Attornеy General appeared for the State at the scheduled preliminary hearing. At that time Clark’s attorney movеd to dismiss the case contending that the magistrate was without jurisdiction. It was argued that the county prosecuting attorney who had primary jurisdiction over the case, see I.C. § 31-2227, had done nothing to commence a criminal prosecution аnd, that the Attorney General lacked authority to prosecute the case in the absence of a special appointment pursuant to I.C. § 31-2603. At the time of the scheduled preliminary hearing on February 10,1976, no appointment as special prosecutor had been secured, but such appointment was secured later that day. Clark argues that until the Attorney General or his deputy had been specially appointed to prosecute the ease, the investigator for the Attorney General was incompetent to file a complaint which would effectively commence a criminal proceeding. Since that had not been done prior to February 3, 1976, the three year statute of limitations, I.C. § 19 — 402, had run and was a bar to this prosecution. That motion was denied by the magistrate and the preliminary hearing was rescheduled for a later time.
Clark then petitioned the district court for a writ of prohibition to prevent the magistrate from conducting the preliminary hearing or otherwise going forward with the prosecution. The district court issued an alternative writ of prohibition and ordered the magistrate to show cause why it should not be mаde permanent. Following the hearing thereon at which the Attorney General was permitted to intervene, the District Court quashed the previously issued alternative writ.
A writ of prohibition serves a fundamental but narrow purpose. Its office is to determine if the body whose action is challenged was attempting to act without or in excess of its jurisdiction. I.C. § 7 — 401.
See Coeur d’Alene Turf Club, Inc. v. Cogswell,
In Idaho, “[t]he complaint is the allegation in writing, made to a magistrate, that a person has been guilty of some designated public offense.” I.C. § 19-501. See I.C.R. 3 (1977). The magistrate is required to examine the person filing the сomplaint under oath and that person must subscribe to the complaint under oath. I.C. § 19-504. See I.C.R. 3. If the magistrate finds probable сause exists to believe a crime has been committed, and that the person named in the complaint cоmmitted the crime, a warrant for arrest must be issued. I.C. § 19-506. See I.C.R. 4(a). In appropriate situations a summons may be issued in lieu of a wаrrant. I.C.R. 4(a).
The central issue here is
who
may file a complaint. “Idaho’s law provides that a warrant for arrest may be issued upon a comрlaint filed upon information by a private citizen if the magistrate, after investigation, is satisfied that the offense has been committed.”
Howard v. Felton,
“[I]f the words ‘complaint’ and ‘information’ are not meant to apply to the same thing, it may be said thаt ‘complaint’ is the name given to the pleading filed by any person other than the prosecutor himself with a justicе’s or probate court, and that the same pleading is called ‘information’ when the pleading is filed by the public рrosecutor.” State v. Stafford,26 Idaho 381 , 388,143 P. 528 , 530 (1914).
Hence, upon proper proceedings before a magistrate a complaint may be
I.C. § 19-402 provides, “A рrosecution for any other felony than murder must be commenced by the filing of the complaint or the finding of an indictment within three (3) years after its сommission.” Here the alleged forgery took place on February 3, 1973, and the complaint was filed on January 27, 1976. Hence, the prosecution was commenced prior to the running of the statute of limitations.
We conclude that the magistrate had jurisdiction to proceed in this case and the district court correctly quashed the alternative writ of prohibition. The order quashing the alternative writ of prohibition is affirmed. Costs to respondent.