222 N.W. 267 | N.D. | 1928
The defendant was arrested on a forgery charge. He was taken before a magistrate for preliminary examination. He demanded that the testimony taken be reduced to writing. Thereafter he stipulated with the state
"That the proceedings in this preliminary hearing be taken down in shorthand . . . and that upon request of either party they shall be transcribed. . . ."
The hearing proceeded. Witnesses were examined. The testimony was taken down in shorthand in accordance with the stipulation. The magistrate bound the defendant over to the next term of the district court. Subsequently the shorthand notes of the testimony were transcribed and were signed by the several witnesses in the presence of the magistrate before the record was sent forward to the district court. It does not appear upon whose demand this was done. At the next term of the district court the defendant was informed against on the charge on which he was bound over. Upon being arraigned he moved pursuant to § 10,728, Comp. Laws 1913, that the information be set aside on the ground that the requirements of the statute, § 10,605, Comp. Laws 1913, as amended by chapter
The statute, § 10,605, Comp. Laws 1913, as amended, clearly gives a defendant the right to have the testimony taken at his preliminary examination reduced to writing in the form of depositions. Assuming without deciding that this statute contemplates that such testimony when taken in the form of depositions shall be subscribed by the witnesses giving the same, the state contends that even so, the defendant consented that the testimony need not be signed by the witnesses and therefore cannot complain. It seems to us that the state's contention is sound. The right to a preliminary examination is statutory (see State v. Rozum,
The judgment is affirmed.
*404BURR, BURKE, BIRDZELL, and CHRISTIANSON, JJ., concur.