Upon application by the Attorney General, we issued an alternative writ of prohibition commanding respondent, Honorable Marvin S. Tаlbott, one of the circuit judges of the Sixth Judicial Circuit, sitting as committing magistrate in the case of State of South Dakota v. Longwell, to desist and refrain from taking any further action to enforce an order that he had entered which required the state to furnish to defendant Longwell the nаmes and addresses of all witnesses known to the state in that particular proceeding. Respondent filed a written response, but .did not appear at the hearing on the order to show cause why a permanent writ should not be entered. The Attorney General appeared for the state and filed a brief. Pursuant to permission to intervene granted by this court, defendant’s counsel appeared at the hearing and also filed a brief in behalf of respondent’s position.
At the close of the state’s case in the preliminary hearing in thе above described case, the respondent, upon the motion of the defendant, ordered the state to turn over to defendant’s attorney the names and addresses of its witnesses so that defendant could subpoena the witnesses at the preliminary hearing, which was tо be continued until a later date.
Preliminary hearings in this state are governed by the provisions of SDCL 23-27. A preliminary hearing is not a criminal prosеcution within the meaning of South Dakota
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Constitution, Article VI, § 7, and is in no sense a trial. State v. Jameson,
Respondent and intervenor contend that because SDCL 23-27-9 provides in part that, “[w]hen the examination of the witnesses on the part of the state is closed, any witnesses the defendant may рroduce must be sworn and examined,” and because a defendant is entitled to compulsory process, see SDCL 23-2-10 and 23-27-8, the state should be required to divulge the names of all of its witnesses prior to the completion of the preliminary hearing in order that the defendant may fully exercise the right granted by SDCL 23-27-9.
Although the Court stated in Coleman v. Alabama, supra, that one of the advantages of a lawyer’s assistance at a preliminary hearing is the more effective discovery of the state’s case and the concomitant advantage of the рreparation of a proper trial defense, the Court did not hold that discovery is an independent right that can be asserted aрart from the exercise of the right to cross-examine the state’s witnesses.
We believe that the correct approach tо the discovery and impeachment aspects of the preliminary hearing was stated by the Supreme Judicial Court of Massachusetts in Lataille v. District Court, Mass.,
“Thus, the discovery and impeachment functions of the preliminary hearing preserved in the Myers [v. Com *182 monwealth, Mass.,298 N.E.2d 819 ] and Corey [v. Commonwealth, Mass.,301 N.E.2d 450 ] cases are not independent rights to be asserted apart from their function of ensuring that the accused is held only when a crime has been committed and there is probable cause to believe the accused to be guilty. Our decisions in those two cases were directed toward establishing а probable cause standard that effectively distinguished between groundless or unsupported charges and meritorious prosecutiоns. Myers v. Commonwealth, Mass.,298 N.E.2d 819 (1973). We held that complete cross-examination arid the opportunity to present affirmative defenses were crucial and necessary to effectuate a true probable cause standard. We did not hold then, nor do we hold now, that thе discovery and impeachment functions are ends in themselves to be asserted apart from their evidentiary role in ascertaining рrobable cause where a preliminary hearing is held.”320 N.E.2d at 880 .
The majority rule in the federal courts is to the same effect. 18 U.S.C.A. § 3060 and Rules 5 and 5.1 of the Federal Rules of Criminal Procedure govern preliminary hearings in federal prosecutions. Rule 5.1(a) provides in part that, “* * * [t]he defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. * * *”
The prevailing view of the right to discovery in a preliminаry hearing before a federal magistrate was expressed in Coleman v. Burnett, D.C. Cir.,
“One view has been that the sole objective of a preliminary hearing is to determine whether there is probable сause to believe that the accused has committed an offense, and that the accused may lay claim to the benefit of оnly so much discovery as may become incidental to a properly conducted inquiry into probable cause. That view has now bеen incorporated into federal jurispru *183 dence by the Federal Magistrates Act.”477 F.2d at 1198-1199 (footnotes omitted).
A similar view was expressed by the Court of Appeals for the Fourth Circuit in United States v. Anderson,
“* * * The purpose of a preliminary hearing is not to provide a discovery mechanism for the defendant, though this may be a collateral or incidental benefit from the hearing, but merely to determine ‘whether probable cause exists to bind an accused for action by a grаnd jury.’ ”481 F.2d at 691 (citations omitted).
Likewise, it has been held that discovery “* * * is merely an incidental benefit — * which varies widely from case to case, depending on how much еvidence the government produces at this early state — and not the statutory purpose. * * *” United States v. Milano, 10 Cir.,
We agree with the fedеral rule that discovery procedures should remain separate and distinct from the preliminary hearing and should be exercised after a defendant has been bound over for trial. Cf. Standards 2.1 and 2.2, American Bar Association Standards Relating To Discovery And Procedure Before Trial, approved draft 1970. We therefore hold that the state is under no obligation to furnish the names and addresses of all of its witnesses prior to the time the defendant has been bound over for trial. Accordingly, the respondent erred in entering the order in question and a writ of prohibition will be entered restraining respondent from taking any action to enforce the order.