The opinion
FARIS, P. J.
(concurring). — I concur in affirming this case for the reason that I am of opinion that defendant by waiving a preliminary examination waived the error in the complaint as to the name of the person alleged to have been killed by defendant.
The situation presents a case of a technical error; a sort of pit for the feet of the unlearned digged by the Legislature — a pit by the way which has been biennially for years on end, alternately dug by one Legislature and filled up by another.. In passing we recall appreciatively the ingenuousness and candor of defendant’s learned counsel in admitting in oral argument that the preliminary hearing was waived with the deliberate intention thereby to inject error into the case upon its trial below.
If Connell and McConnell are not idem sonans, and obviously they are not (Myers v. DeLisle, 259 Mo. 506 ; 29 Cyc. 276 and cases cited), I see no safe ground upon which to base an affirmance except that of waiver.
Let me briefly array the facts: ■ Defendant appeared June 4, 1914, and heard and had read to him, the record says, the complaint now attacked as rendering the' information based on it quashable; he then begged the indulgence of a continuance for eleven days so as. to prepare for the preliminary examination, and gave bond that he would appear thereat; on June 15th he again appeared, waived the preliminary examination and suffered his bond to be fixed at $2000, for his appearance before the circuit court to answer any indictment or information which might he preferred against him; he gave this bond and did appear, and on *591 his appearance in the circuit court objected by his motion to quash, for the very first time to the error in the complaint which wrongly recited the name of deceased. I think on these facts he waived the error in the complaint. Likewise I tMnk, but am not called on to decide, that if he had gone into a preliminary examination on the complaint as it stood, he would clearly have been entitled to his discharge thereon.
It is manifest I think, that if a preliminary examination may be waived, and the statute specifically so provides (Laws 1913, p. 225), then it follows that the defendant in exercising his statutory privilege to waive the preliminary examination, likewise must he held to have waived all irregularities in matters connected with such examination. Even- a waiver of the right to a preliminary examination will he implied, •when no such waiver in fact occurred, when the accused gave hail for Ms appearance at the next term of court in a case wherein no complaint whatever had been filed against him (Cunningham v. State, 116 Ind. 433 ), or when he suffers hirhself to he bound over for trial without objection and after he, in fact, had pleaded not guilty. [State v. Ritty, 23 Ohio St. 562 .] Is not the absence of any complaint whatever a more serious defect than a mere error of misnomer in a complaint otherwise good?
TMs state of the law considered, in analogous cases which are stronger in some aspects than the condition confronting us in the instant case, I feel no manner of doubt that defendant may not deliberately amhusli the trial court as was done here, but that he ought to be held to have waived any error and' imperfection in the complaint such as a minor mistake in the name of the deceased.
I think it is to he deduced as a rule in the absence of a statute, that in the final analysis, a preliminary examination is, and has ever been for the benefit of accused; that he may not he unjustly and without proof, *592 or probable cause, incarcerated or forced to find bail. This does not militate in any way against the view taken in State v. Jeffries, 210 Mo. l. c. 320, where it was said: “The preliminary examination after all is but an expedient’ to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the'State.” While all this is so, yet ever since prosecutions for felonies have been permitted by information, it in a way cuts in behind the latter view. For though I am mindful of the provisions as to putting witnesses upon recognizance, this could have been reached by some other statutory provision; while the filing .of an information against the accused would immediately put him in jail or force him to his writ of habeas corpus, but for the right he has to have accorded him a preliminary examination. The examining magistrate is not expected, or empow-.. ered, to determine the guilt or innocence of the accused, or to nicely or irrevocably determine the precise offense of which he is guilty. The statute says: “If it appear that a felony has been committed” (not the felony), “and that there is probable cause to believe the prisoner guilty thereof” (Sec. 5036, R. S. 1909), he may let him, to bail if the offense be bailable (Sec. 5039, R. S. 1909), providéd the preliminary examination is not to be had when accused sees fit to waive it. [Laws 1913, p. 225, supra.]
What does he waive? Clearly, I think he waives that which the magistrate was required to find, viz., that a felony had been committed, and that there was probable cause to believe the accused committed it. And by a waiver of such examination accused in effect admits, for all and singular but only for the legal purposes, objects and intents of the preliminary examination, all that such magistrate was required to find, viz., that a crime has been committed and there is probable cause to believe that accused is guilty of its commission. Thereafter it is left to the prosecuting attorney *593 to determine the exact legal name and nature of the offense committed. [State v. Anderson, 252 Mo. 83 .] The law then, this view considered, ought not to be, neither do I think it is, that for every small error of a magistrate unlearned in the extreme niceties of the law, prosecutions must be halted after informations are filed and the case sent back for a technically correct preliminary hearing. [State v. Jeffries, supra; State v. Anderson, supra.] Going a little further in analogy : If defendant had pleaded guilty of manslaughter, for that, as the information charged he had killed one Olin Connell, when in fact he had killed Olin McConnell, would relief be afforded him here upon appeal upon the bare point of misnomer of deceased, the information being otherwise sufficient? I think not. So I vote to concur upon the point of waiver alone.