guilt had been made on preliminary examination, and the verification was required only by way of showing good faith in the prosecution, and not to make out a prima facie case." An examination of the case will show that the complaint was made with the same purpose as the one in the case before us. In affidavits generally for the arrest of alleged criminals, it is not necessary that they should show a prima facia case, but need only set forth facts tending to establish the commission of the offense and the guilt of the defendant, so that "the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it." Laws of Utah 1878, p. 72, section 59. After the arrest, and after the examination of the case then, if there is a prima facie case made out against the defendant, the magistrate must hold him to answer to an indictment.

1

If it were necessary that the affidavit for arrest should be upon knowledge, and not upon information and belief, the criminal laws generally, in this section of the country, would be a dead letter, and especially would this be the case in regard to offenses of this character, where the witnesses are almost exclusively unwilling, and hostile to the enforcement of the law. Mr. Bishop says that the doctrine of the books is that the officer may by warrant cause persons suspected of any crime to be arrested for preliminary examination, with a view to holding the party to answer to the charge in the proper court. Bish. Crim. Proc., sec. 225, (3d Ed.); Blodgett v. Race, 18 Hun., 132. The doctrine laid down by the Michigan courts in the cases referred to may occasionally have been followed elsewhere, as in Nelson v. Cutter, 3 McLean, 326, and Smith v. Watson, 1 Cranch, C. C., 311, 312; but the better doctrine, and that which is more generally accepted, is that an affidavit on information and belief is sufficient in such a case: State v. Hobbs, 39 Me., 212; In re Lewis, 31 Kan., 71; 1 Pac. Rep., 283; Matoon v. Eder, 6 Cal., 57; Washburn v. People, 10 Mich., 372; Mitchell v. Pitts, 61 Ala., 219; U. S. v. Bryant, 111 U. S., 499; Jackson v. Webster, 6 Munf., 462.

Our territorial statutes regarding informations or complaints are similar to those of New York. By both Codes it is made the duty of the magistrate, when an information is laid before him of the commission of a public offense, to "examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them." Crim. Code N. Y., sec. 148; Laws Utah, 1878, p. 72; Criminal Procedure Act, sec. 57. These statutes do not require any formal complaint in writing made out beforehand, although one is usually prepared: Payne v. Barnes, 5 Barb., 465; Ex parte Boswell, 34 How. Pr., 347. Then, by the sections which follow, (sections 58, 59, Utah Act), when the officer has reduced the statement of the prosecutor to writing, if he "is satisfied therefrom that the offense complained of has been committed, and there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest." He would not be justified in refusing to do so unless the charge is too indefinitely stated to warrant the belief in the magistrate that an offense had been committed, or that the defendant was the guilty party. The officer has a limited discretion as to how far he relies on the statement of the party: Wolfe v. Brouwer, 5 Rob., (N. Y.), 601; Union Bank v. Mott, 9 Abb., 108.

At the examination, the information or complaint or depositions taken before the issuance of the warrant do not become the basis of the magistrate's action in holding the accused to answer in the district court, but he proceeds to an examination of the witnesses, and then, in pursuance of section 106, if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, he must order him to be held to answer to the same. The evidence on the examination need not go beyond enough to show a probable cause: Burr's Tr., 4; U. S. v. Bollman, 1 Cranch, C. C., 373. The holding of the defendant to answer to an indictment in the district court is based upon the facts proven at the examination, and not upon the information, complaint, or depositions taken before the issu

ance of the warrant. If, therefore, the defendant wishes to object to the complaint, information, or deposition, he should do so before the examination is gone into; otherwise he waives all objection to the defects and irregularities therein, or connected with its issuance.

In the present case the defendant made no objection whatever to the complaint. Having made no objection. thereto, he went further, and in express terms waived an examination of the case-waived proof of the facts necessary to authorize his being held to answer. This was an

admission that the facts would have authorized the officer to hold him. But it was not, of course, an acknowledgment of guilt, nor was it any evidence that could be admitted in evidence against him on his trial; but it certainly was an admission that there was no lack of proof to hold him. A party cannot waive proof, and thereafter set up that there was no proof. At this point the sureties first appear, after the defendant has waived proof. If the principal had waived proof; and thereafter could not gainsay it, we see no reason why the sureties could then come in, and set up a defense which the principal could not set up. They waived whatever he had waived. They cannot go behind his action to obtain ground for their discharge. They stand just where they would have stood if full proof sufficient to hold the accused, had been made before they became parties to the undertaking. We are not now considering what defense the sureties could make in case there had been no proof, no waiver, or no offense charged. But our consideration extends only to the alleged defects in the case as presented; yet if it were possible for the sureties to go behind the action of the principal, and object to the complaint, we have seen that the objection to the complaint could not be upheld, for the reason that a complaint or deposition made upon information and belief is sufficient where the purpose is to have an examination of the case with a view to holding the party to answer to the same in the proper court.

We think that it may be a good rule of law that no affidavit would be valid that would not sustain a charge of perjury if taken falsely. But the affidavit here objected

to would, we think, sustain a charge of perjury if taken falsely. More proof probably might be required to make out the perjury upon it than when the affidavit is based upon knowledge; yet it could be shown. It would seem needless to call attention to the fact that, if this were not so, a vast amount of verifications, under our Code of Civil Procedure, would be worthless in law as oaths. The statute expressly authorizes them to be made on information and belief in many instances, and it is not probable that the legislature intended to require an oath that was not in law binding, and for the false taking of which the affiiant could not be punished. This, however, is not a new question. It is one which we think is well settled by the authorities. The ruling in England at one time was that such oath would not warrant a conviction for perjury if taken falsely; but it was subsequently held differently, and the established doctrine came to be that belief was an absolute term, and would support an indictment, and this we deem is the accepted doctrine in this country: King v. Pedley, 1 Leach, 327; 2 Hawk. P. C. (N. A. Ed.) 88; Bac. Abr. tit. "Perjury," 426; 2 Russ. Cr., 597; Com. v. Cornish, 6 Bin., 249; Whart. Amer. Crim. Law, (4th Ed.) section 2201; State v. Lea, 3 Ala., 602. But in the case at bar it is immaterial whether the complaint was sufficient or not. Its defective character cannot be inquired into in the proceedings on the forfeited bond: U. S. v. Evans, 2 Flip., 605; 2 Fed. Rep., 147; Hester v. State, 15 Tex. App., 418; Jones v. State, Id., 82; Reeve v. State, 34 Ark., 610; State v. Nicol, 30 La. Ann. pt. 1, 628; Welborn v. People, 76 Ill., 516.

Indeed, if there had been no affidavit or complaint whatever, and the accused had gone voluntarily before the officer, and given bail for his appearance to answer the indictment, it would have been good. The giving of the undertaking thus voluntarily would have been a complete waiver of the complaint, deposition, and proof of probable cause, and of all irregularities in the case prior to the giving of the bail. Adair v. State, 1 Blackf., 200. The accused in the present case expressly waived proof of probable cause, and he thereby waived the defects in the com

plaint, upon which the proof of probable cause was to be made.

3. The undertaking was objected to upon the ground that it did not describe any offense. The complaint charged George Q. Cannon "with having committed the crime of unlawful cohabitation with more than one woman, between," etc. We have already seen, in considering the complaint, that the name "George" is well recognized as that of a male person, and that that is sufficient, without the further allegation that he is a "male person." If it is sufficient in the complaint, there is no reason why it should not be so in the undertaking. The term "unlawful cohabitation" is a common and well-recognized designation of the offense specified in the statute. It is the term used by appellants themselves, in their brief, to designate the crime charged. Indeed, it would be difficult to select other words that, in a general way, would describe the offense so well. If the word "unlawful" be omitted, the language remains as that of the statute, but, the offense being contrary to law, it is "unlawful." The addition, therefore, of the word "unlawful" is only expressive of a fact existing without it, and is not improper, but highly proper. It is an established rule that statutory offenses may in indictments be described in the language of the statute, and it is sufficient: U. S. v. Cannon, 4 Utah, 122, and cases therein cited, and 116 U. S., 55. If described substantially in the language of the statute, it is sufficient. U. S. v. Simmons, 96 U. S., 360. The overwhelming weight of authority is that, as a general rule, the recognizance or undertaking need not state the offense with technical particularity. It is wholly unnecessary to go into details. The description set forth in the undertaking in the present case, therefore, is sufficient, without giving the names of the women: State v. Birchim, 9 Nev., 95; Tillson v. State, 29 Kan., 452; State v. Terrell, Id., 563; State v. Merrihew, 47 Iowa, 112; Chase v. People, 2 Colo., 528; Dunham v. Wilfong, 69 Mo., 355; State v. Howley, 73 Me., 552; Adams v. State, 48 Ind., 212; U. S. v. Dennis, 1 Bond, 103; Barrera's Sureties v. State, 32 Tex., 644; Com. v. Daggett, 16 Mass., 447; Com. v.