On June 11, 1945, preliminary information was filed in the office of a justice of the peace of Buchanan county against Walter Keegan, petitioner herein, accusing him of the crime of operаting á motor vehicle upon the highway ■ while in an intoxicated condition, -contrary to tbe provisions' оf-section 5022.02, Code of- 1939 (section 321.281, Code of 1946). Defendant in the information waived preliminary hearing. ■ He was held to answer under.bond of $500, which he furnished, and released from custody. The proceedings before the justice of the peace were duly transcripted to the district court on the same dаy, June 11th. The April term of court, which began on April 14th, was then in session.
The next regular term of court in Buchanan county after the hearing before tbe justice, began on September 4, 1945. No. grand jury was called оr was in session during, that term. The next regular term began November 4, 1945, and again no grand jury was called or was in sеssion. Tbe first term of court held in 1946 began on February 4th. During all these, terms of court Robert R. Melrose was the сounty attorney, but at the February 1946 session of the grand jury, on motion of the attorney general, Charles H. Sсholz, assistant attorney general, was permitted by the court to appear before and present matters to the grand jury, and the county, attorney was ex-elúded. Before, the grand jury was sworn, Keеgan, defendant in the prpsecution, and hereafter termed plaintiff! in this proceeding, though duly cаlled in open court, made no appear *1188 anee. The grand jury, on February 20, 1946, returned three indictments, one being against the plaintiff herein for the same offense with which he was charged at the рreliminary hearing. On February 23d plaintiff appeared, and through his attorneys O’Brien and Molloy, who had been his attorneys at the preliminary examination, waived formal arraignment, stated he was indicted by his right name, and filed written motion for dismissal of the indictment. The motion set out the same facts to which we have rеferred and which were stipulated by counsel. On March. 16th the motion was overruled. The ruling of the court is challenged in the certiorari proceeding. No record was filed by petitioner in this court, but a full and complete return was made by the district judge, and the facts above cited are shown thereby, in аddition to the stipulation.
In support of his motion petitioner cites section 14023, Code of 1939 (section 795.1, Code of 1946) :
“Failure to indict. When a person is held to answer for a public offense, if an indictment be not found against him at the next regular term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”
Plaintiff argues that the exception contained in the statute, “unless good cause to the contrary be shown,” is not in question in this case, since the court made no finding that good cause had been shown, and there is nothing in the record upon which such finding could be made. It was not necessary that the ruling on the motion should show any findings of the court. It was sufficient that it either sustained or overruled it. We do not agree, however, that therе was nothing in the record upon which such finding could be made. It is true, as claimed by plaintiff, that the burden to show good cause rested upon the state. Martens v. Gaffney,
Since the foregoing disposes of the case it is unnecessary to consider whether or not certiorari is a proper remedy. — Writ annulled.