that no information should be filed without the express order of the court, publicly giv en. That statute does not enumerate the grounds which are sufficient to enable us to grant the information, but the legislature left it to our discretion, trusting that we should not so far transgress our duty as to go beyond the rules of sound discretion. In ordinary cases affidavits are sworn in the court for the express purpose of praying an information upon them, but that does not preclude us from granting an information on affidavits equally authentic, although not made for that purpose." Sir James Fitzjames Stephen, in his History of the Criminal Law of England (vol. 1, p. 296), in referring to the act of 1692, regulating informations exhibited by the master of the Crown office, also observes: "The practical result of this statute has been to make a motion for a criminal information practically equivalent to a proceeding before magistrates in order to the committal of the accused." This distinguished jurist, on the page of his valuable work preceding that misdemeanors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offenses so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the Crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal, which power, thus necessary, not only to the ease and safety, but even to the very existence, of the executive magistrate, was originally reserved in the great plan of the English Constitution wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations filed by the master of the Crown office upon the complaint or relation of a private subject are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the government (for those are left to the care of the attorney general), but which, on account of their magnitude or pernicious example, de- | from which the foregoing excerpt is taken, serve the most public animadversion." 4 Bl. Com. *308. In the reign of Henry VII. the remedy by information, exhibited on leave of court by the master of the Crown office, became the means of great oppression to the subjects of England. and so continued with little abatement until 4 & 5 Wm. & Mary, chap. 11, and chap. 18, which provided, in effect, that the clerk of the Crown, in the court of the King's bench, should not, without express authority, to be given by the court when in session, exhibit, receive, or file any information for any of the causes for which it was allowable, nor issue any process thereon, without taking a recognizance from the person procuring such information to be exhibited, but that the act should not extend to any other information than such as should be exhibited in the court of King's bench by the master of the Crown office. 2 Hawk. P. C. 358. This learned author, after quoting the acts, the substance of which is here given, makes | VII.), by hunting out obsolete penalties, and the following declaration: "From whence it follows that informations exhibited by the attorney general remain as they were at the common law." In King v. Jolliffe, 4 T. R. 285, Lord Chief Justice Kenyon, referring to the act regulating the exhibition of informations by the master of the Crown office, says: "Before the statute 4 & 5 Wm. & Mary, chap. 18, it was in the power of any individual to file an information, without disclosing to the court the grounds on which it was exhibited. But that practice being attended with the inconveniences recited in the preamble to that statute, it was enacted in referring to the statute of 1494 (11 Hen. VII. chap. 3), remarks: "This act was the one under which Empson and Dudley earned their obscure infamy." Blackstone, alluding to the act last referred to, and also to another ordained in the reign of the same sovereign, makes the following statement: "But when the statute 3 Hen. VII. chap. 1, had extended the jurisdiction of the court of star chamber, the members of which were the sole judges of the law, the fact, and the penalty, and when the statute 11 Hen. VII. chap. 3, had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assizes or before the justices of the peace, who were to hear and determine the same according to their own discretion, then it was that the legal and orderly jurisdiction of the court of King's bench fell into disuse and oblivion, and Empson and Dualey (the wicked instruments of King Henry this tyrannical mode of prosecution, with other oppressive devices, continually harassed the subject and shamefully enriched the Crown." 4 Bl. Com. *310. It was the fear, undoubtedly entertained by the citizens of this country, that a violation of the rights of personal liberty, as practised in England in the reign of King Henry VII., might possibly be repeated to their injury, that prompted Congress to propose and secure the adoption of the 4th Amendment to the Constitution of the United States. As this amendment was never intended to limit the powers of the states in respect to their own people, but was designed to operate on the national government only (Spies v. Illinois [Ex parte Spies] 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, 22; Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287), the framers of the Constitution of this state embodied the substance thereof in the Bill of Rights, which declares: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized," Or. Const. art. 1, § 9. This restrictive clause has been incorporated into the statute of this state, which, so far as deemed involved herein, is as follows: An information is the allegation or statement made before a magistrate, and verified by the oath of the party making it, that a person has been guilty of some designated crime. Bellinger & C. Codes & Statutes, § 1581. When complaint is made to a magistrate of the commission of a crime, he must examine the informant on oath, and reduce his statement to writing, and cause the same to be subscribed by him, and also take the deposi tions of any witnesses that the informant may produce in support thereof. Id. § 1584. Thereupon, if the magistrate be satisfied that the crime complained of has been committed, and that there is probable cause to believe that the person charged has committed it, he must issue a warrant of arrest. Id. § 1585. The necessity of satisfying the magistrate that the crime complained of has been perpetrated, and that there is probable cause to believe that the person charged has committed it, as a condition precedent to the issuing of a warrant of arrest, is analogous to the leave of court which the master of the Crown office in England was obliged to secure before he was permitted to exhibit an information in the name of his sovereign. At common law the attorney general, ex officio, was invested with a discretionary power of filing informations charging the commission of misdemeanors, and hence he was not obliged to ask for or obtain leave of court before exercising the responsibility that devolved upon him by virtue of his office. 4 Bl. Com. *309. Thus, in Rex v. Philipps, 3 Burr.1564, it was ruled that the attorney general had a right himself, ex officio, to exhibit an information without leave of court; Lord Mansfield saying: "This is not a case within the act of 4 Wm. & Mary, chap. 18." To the same effect is Rex v. Davis, 4 Burr. 2089, in which case the same learned justice also remarked: "If it appears to the King's attorney general to be right to grant an information, he may do it himself. If he does not think it so, he cannot expect us to do it." The discretionary power vested in and exercised by the attorney general at common law devolves, in this country, in the absence of any statutory regulations, on the district attorneys (State v. Douglas County Road Co. 10 Or. 198; State ex rel. Taylor v. Lord, 28 Or. 498, 31 L. R. A. 473, 43 Pac. 471), the commission of crimes by information, as who are entitled to prosecute persons for a right pertaining to their office, and withcut leave of court (1 Bishop, New Crim. Proc. § 144; State v. Kyle, 166 Mo. 287, 56 L. R. A. 115, 65 S. W. 763). "Therefore," says Mr. Justice Thomas in State v. Rans berger, 106 Mo. 135, 17 S. W. 290, "when the prosecuting attorney files an information, it is always official; it is his accusation, and for it he is responsible.” In Territory v. Cutinola, 4 N. M. 305, 14 Pac. 809, it was held, notwithstanding the 4th Amendment of the Constitution of the United States was in force in the territory of New Mexico, that, under the rules of the common law as adopted in this country, it was not essential that an information filed ex officio by a prosecuting attorney, charging the commission of a misdemeanor, should be supported by affidavit. In that case the court criticizes the decision of Billings, J., in United States v. Tureaud, 20 Fed. 621, cited by defendant's counsel, and states that the part of the opinion relied upon "is the mere dictum of the judge, and cannot be regarded as authority." Section 11 of article 2 of the Constitution of Missouri, adopted October 30, 1875, declares that no warrant to seize any person shall issue without probable cause, supported by oath or affirmation reduced to writing. Section 12 of article 2 of the organic law of that state, which originally provided for the prosecution of felonies by indictment only, was amended by resolution of the legislature, which, having been adopted by a vote of the people, took effect December 19, 1900, substituting the following in lieu of the former clause, to wit: shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies; but this shall not be construed to apply to cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger." Mo. Laws 1899, p. 382. After this amendment was adopted, it was held, notwithstanding the Constitution of that state required the oath or affirmation supporting the probable cause to be reduced to writing, that a prose "No person cuting attorney might file a criminal information based on his official oath. State v. Kyle, 166 Mo. 287, 56 L. R. A. 115, 65 S. W. 763; State v. Pohl, 170 Mo. 422, 70 S. W. 695; State v. Fletchall, 31 Mo. App. 296; State v. Wilkson, 36 Mo. App. 373; State v. Parker, 39 Mo. App. 116. The Bill of Rights of this state does not demand that the oath or affirmation sustaining the probable cause shall be reduced to writing, nor does our statute require an information charging the commission of a crime to be verified; and, in the absence of any enactment on the subject, the rules of the common law in relation to informations exhibited by the attorney general are applicable and controlling. The district attorney of the proper judicial district in this state is responsible for all informations filed and is not obliged to obtain leave of court to discharge his duty in this particular before he is permitted to exercise the discretion with which the law invests him. As the circuit court is authorized to convene a grand jury when deemed advisable (Bellinger & C. Codes & Statutes, § 1264), indictments and informations are therefore concurrent remedies, and, as the former means of charging the commission of a crime is based on and supported by the oath of the grand jurors, which fact, in this state, need not be recited in the written accusation, so an information, under our statute, need not be verified, for the official oath of the person whose duty it is to prosecute the formal charge complies with the requirement of the organic act, and supplies the necessary oath or affirmation, thereby supporting the probable cause. It is contended by defendant's counsel that the district attorney for the fourth judicial district did not prepare or file the information herein, and hence the court erred in denying their motion to set it aside. John Manning, the officer mentioned, having been called as a witness by defendant's counsel, testified that his signature to the information was not aflixed by him, and that he was not in Portland the day the information was filed. L. C. Hartman and J. P. Fones, whose names are indorsed on the information, appearing as defendant's witnesses, severally testified that, in furnishing evidence as a basis for the information, they were sworn and examined in the office of the district attorney by a deputy. That part of the statute authorizing a prosecuting officer to nominate representatives is as follows: "A district attorney, during his continuance in office, shall be entitled to appoint as many deputies in each county as he may deem necessary, and may, by a written appointment filed with the clerk of the circuit court of the county, authorize such deputies, or any of them, to attend upon the sittings of the grand jury, and attend to and transact all business pertaining to the district attorney's office." Bellinger & C. Codes & Statutes, § 2927, as amended by act of December 28, 1903 (Sp. Laws Or. 1903, p. 32). No evidence was offered at the trial tending to show that the appointment of the deputy who signed the name of the district attorney to the information was in writing, or the extent of the power delegated to him. At common law, though the attorney general was authorized to exhibit informations, without leave of court, charging the commission of misdemeanors, if that office was vacant the solicitor general was empowered to discharge that duty. In Wilkes v. King, 4 Bro. P. C. 360, it was ruled that notice of the right of the solicitor general to exhibit an information would be taken, without proof of the vacancy in the office of attorney general. In that case it is said: "That the attorney and solicitor general are invested by their offices with general authority to commence and prosecute the suits of the Crown. It is true, the attorney general, as the superior officer, has the direction and control of His Majesty's prosecutions, in which the solicitor general seldom interferes; but it is equally true that during the vacancy of the office of aftorney general all the suits of the Crown both criminal and civil, are commenced, prosecuted, and carried on by the solicitor general. That at the time when these informations were filed against Mr. Wilkes the office of attorney general was vacant, and consequently the solicitor general was the proper officer to exhibit them. But it is said that the fact of the vacancy ought to appear upon the record. The only pretense for such an averment is to inform the court of the vacancy, as an inducement to receive the information from the solicitor general, but there is no necessity for that intelligence. The attorney general is, in truth, an officer of, and has a place in, the court of King's bench, and the court will take notice of the vacancy of the office; and there are multitudes of instances of suits commenced and prosecuted by the solicitor general on behalf of the Crown, without any averment or notice taken of the vacancy of the office of attorney general." In Choen v. State, 85 Ind. 209, it was held that an indictment signed by a person as "special prosecuting attorney" was not subject to a motion to quash, or vulnerable to a plea in abatement, which did not deny the due appointment of such special prosecuting officer. In deciding that case, Mr. Justice Woods says: "A court takes cognizance of its own officers and of the genuineness of their official signatures by law, and that no prejudicial error was and designations." committed, the judgment is affirmed. A petition for rehearing having been filed, Moore, J., on March 27, 1905, handed down the following additional opinion: In the case at bar the motion to set aside the information is based on the ground that it was not found, indorsed, or presented as required by law. This objection was insufficient to challenge the appointment of the It is contended by defendant's counsel, deputy district attorney, and, as the trial in their petition for a rehearing, that if it court is presumed to be cognizant of its be conceded, as stated in the former opinion own officers and of the measure of their herein, that a district attorney in this state powers, no proof of the appointment of the possesses the power, formerly exercised ex deputy was necessary. There being no is officio by the attorney general in England, sue on this question, it must be assumed of exhibiting informations for misdemeanors that the deputy district attorney possessed only, a district attorney in Oregon has no plenary power, and was authorized to exam- authority in that manner to charge a felony. ine witnesses to enable him intelligently to The legal principle insisted upon challenges charge persons with the commission of the power of the legislative assembly to concrimes, to prepare informations, sign the fer upon the district attorney such authoriname of the district attorney thereto, and to ty. The only reason that can be assigned file them in the circuit court. People v. Et to support this point is that such a procedting, 99 Cal. 577, 34 Pac. 237; United States ure is violative of the 14th Amendment to v. Nagle, 17 Blatchf. 258, Fed. Cas. No. the Constitution of the United States, in 15,852. In State v. Belding, 43 Or. 95, 71 that it may result in the deprivation of Pac. 330, it was held that the district attor-life or liberty without due process of law. ney having filed an information containing | The Supreme Court of the United States, his name, printed under the indorsement, in construing this clause, has settled all con"A true information," thereby adopted such printed name as his own signature, which bound him as effectually as if he had personally subscribed it to the accusation. So, too, in the case at bar, when the district attorney insisted on the defendant's pleading to the information, he thereby ratified the subscription of his name by his deputy. The district attorney, by virtue of his election and oath of office, was authorized formally to charge persons with the commission of crimes perpetrated or consummated in the judicial district in which he was chosen, and, invoking the maxim, Qui facit per alium facit per se, when he caused the defendant to go to trial on the information filed by his deputy he thereby verified under his of ficial oath the facts constituting the gravamen of the charge. The office of deputy district attorney was not created by the organic law of this state, so as to require the appointee to swear to support the Constitutions of the United States and of this state (Or. Const. art. 15, § 3), nor have we been able to find any statutory provision demanding that he shall take an oath of office; but as the deputy, in the case at bar, did not subscribe his own name to the information but signed that of the prosecuting attorney, who is a constitutional officer (Or. Const, art. 7, § 17), and specially required to take an oath of office (Bellinger & C. Codes & Statutes, § 2502), the information, which states the facts constituting the probable cause (Jones v. Robbins, 8 Gray, 329), is supported by an oath. Believing that the defendant had a fair and impartial trial in the manner prescribed troversy on the subject by holding that the prosecution of a person for a felony by an information only constitutes due process of law. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287. The similarity of power exercised ex officio under the rules of the common law by the attorney general of England, and that employed by a district attorney in this state, lies in the fact that the former was, and the latter, in the absence of legislation on the subject, is, authorized to perform the duties devolving upon him without leave of court. A district attorney may therefore, in his own discretion, file an information charging the commission of any crime committed or triable in the county for which he is elected or appointed. An examination of the rules of the common law, and an investigation of the mode of practice pursued by the attorney general of England thereunder, necessarily lead to the conclusion that a district attorney in this state, in the absence of any enactment on the subject, possesses the same measure of power exercised by him, and hence is not, like the master of the Crown office, obliged to secure leave of court before he can exercise his discretion, but, like such attorney general, he has authority to file informations charging the commission of misdemeanors. This is the limit to the analogy between the powers of these officers, but, to the extent of the similarity indicated, the ancient law is germane and governs, demonstrating that a district attorney in this state possesses plenary pow er to file informations without permission | the legislative assembly of the power re of court. served by the people in the fundamental law, and because their representatives, when assembled, considered it appropriate to designate the district attorney as the proper person formally to charge the commission of crimes, his right to employ the authority conferred is as well founded as if the control in such matters had been delegated to any other person or number of persons. His authority, however, so far as it relates to the filing of informations charging the commission of felonies, is not derived from the common law, but directly from the legislative assembly. Bellinger & C. Codes & Statutes, § 1258. The organic law of this state, in commanding the method to be pursued in securing jurors, is as follows: "The legislative assembly shall so provide "An information," as defined by the leg. that the most competent of the permanent islative assembly in 1864, "is the allegation citizens of the county shall be chosen for or statement made before a magistrate, and jurors; and out of the whole number in at- verified by the oath of the party making it, tendance at the court, seven shall be chosen that a person has been guilty of some desig by lot as grand jurors, five of whom must nated crime." Id. § 1581. In modifying concur to find an indictment. But the leg- the grand jury system, the legislative asislative assembly may modify or abolish sembly in 1899 designated the formal charge grand jurors." Or. Const. art. 7, § 18. of the commission of a crime, made by the The legislative assembly, exercising the pow- district attorney as an "information," but er thus reserved, passed an act, which was the accusation in writing might have been approved February 17, 1899 (Laws 1899, indicated as well by any other name. The p. 99), authorizing the district attorney word "information," as defined in the statof any judicial district in this state to file ute first enacted, refers to the charge made informations charging persons with the com- before a magistrate, and in the last act to mission of any crimes, defined and made the complaint made by a district attorney. punishable by the laws of Oregon, that have We do not think the legislative assembly, been committed in the county where the in- by designating the formal charge last reformation is filed. Bellinger & C. Codes & ferred to as an "information," thereby inStatutes, § 1258. The information specified tended that the word used should be undershall be substantially in the form prescribed stood as meaning a verified statement, and for an indictment (Id. § 1304), except that for this reason resort must be had to § 9 the words "district attorney" shall be used of the Bill of Rights of this state, and not instead of the words "grand jury" wherever to the statute defning the word, to deterthe same occur. Id. § 1259. The informa-mine whether or not the information filed tion, when filed, shall be construed like, and deemed to be in all respects the same as, an indictment, and the same proceedings shall be had, and with like effect, as in cases where indictments are returned by a grand jury. Id. § 1260. Any person within this state can be compelled by subpoena to appear before a district attorney to testify concern ing any crime inquired of by him. Id. § 1261. The name of each witness thus ex amined by the district attorney shall be inserted at the foot of or indorsed upon the information before it is filed. Id. § 1262. by the district attorney should be verified by an oath indorsed thereon or specially made with reference thereto. The affidavits required to support the probable cause were originally sworn in the court for the express purpose of praying an information upon them. King v. Jolliffe, 4 T. R. 285. As at common law the attorney general in England ex officio exhibited informations for misdemeanors without leave of court, no necessity existed for the making of an affidavit to support the probable cause, except by the master of the Crown office. This was the rule of the common law, as announced in King v. Jolliffe, 4 T. R. 285, when the 4th Amendment to the Constitution of the United States was ratified, and also when § 9 of the Bill of Rights of this state was adopted, commanding that no warrant should be issued but upon probable cause, supported by oath or affirmation. A reasonable interpretation of the clause of the organic law of this state, to which attention is called, when read in connection with the rules of the common law, leads to the conclusion that an indictment found and returned by a grand jury need not be special A perusal of the act in question, the substance of which is hereinbefore stated, will show that it is in effect a modification of the grand jury system, whereby that in quisitorial body has, except when in the opinion of the court deemed advisable (Id. § 1264), been superseded by the district attorney, who can find informations only on the testimony of witnesses taken before him, which tends to show that a crime has been committed in the county, and that there is reasonable cause to believe that the person to be charged is connected therewith and can upon a trial therefor be convicted thereof. The change in the manner of initiatingly verified by an oath of any person, and criminal actions is a reasonable exercise by that the same rule also applies to informa |