and an

the statement that the claim was "true and just, nounced that he would cover the matter by an instruction to the jury. The court did instruct the jury, in a special instruction, to disregard all matters in the written assignment, except the matter that the claim owned by Mr. Gorton was by him assigned and transferred to the plaintiffs. Appellant's counsel excepted to the ruling of the court in this behalf, and now insists that the court erred. While the statements of fact in the writing were not proper as evidence against either one of the defendants, that part constituting the assignment of the claim was proper. The whole trouble with counsels' claim is that they did not at the time point out and limit their objections to the vulnerable parts of the assign

ment.

Had they done this, and the court had then ruled against them, they might be in a position to now urge the ruling as being erroneous. It is not ordinarily the duty of the court, when a document or paper is offered as a whole, which contains both proper and improper matter, to segregaté the one from the other; but, as a general rule, such duty is imposed upon the objecting party, and he must point out and direct his objection against the part or parts that are not proper. In this case it would have been an easy matter for either court or counsel to segregate the proper from the improper matter, and to allow only that which was proper to go to the jury. In view, however, that counsel did not do this, the court was not obliged to do it, and therefore committed no prejudicial error in admitting the assignment in evidence. If under such circumstances an attorney desires to avail himself of an objection to the whole document, he must make a double objection, one to the part which is in fact improper, and the other to the instrument as a whole, and save his exceptions to the ruling of the court. The practice with regard to such an objection is discussed and applied in a case decided at this term, namely, State v. Greene, 33 Utah 497, 94 Pac. 987, and we shall do no more than to refer to that case.

We are also of the opinion that the instruction of the court with respect to the statements contained in the assignment was sufficient. This question, and the effect of such in

34 166 [35 500

structions, we have also passed upon at this term in the case of Loofbourow v. Utah Light & Power Co., 33 Utah 480, 94 Pac. 981, and we shall not enlarge upon what is there said upon the subject. We remark, however, that in view of the whole evidence in this case, appellant could not in any possible way have been prejudiced by the statements contained in the assignment. The evidence at the trial which was not controverted by the defendants was such that, if the plaintiffs were entitled to recover as a matter of law, the jury could not have found the facts otherwise than they did. In no event, therefore, was there any prejudicial error with respect to this

matter.

All the other assignments are substantially covered by what has been said, and no special discussion of any of them is deemed necessary.

The judgment is therefore affirmed, with costs to respondents.

MCCARTY, C. J., and STRAUP, J., concur.

STATE v. JENSEN.

No. 1934. Decided August 4, 1908 (96 Pac. 1085).

CRIMINAL LAW-PRELIMINARY EXAMINATION. Const., art. 1, sec. 13, provides that offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived, or by indictment with or without such examination. An information was filed on August 17, 1907, charging defendant with fornication, and defendant was duly bound over by a committing magistrate to answer to the charge. The information was quashed on the ground that the complaint showed that the crime was barred by limitations, and the state, without again taking defendant before a committing magistrate for preliminary examination, filed a second information charging him with unlawfully having sexual intercourse on another date. Held, that the court could not authorize the filing of the second information and try defendant for a distinct offense for which he had never been committed before a magistrate.

APPEAL from District Court, Sixth District; John F. Chidester, Judge.

Arthur Jensen was convicted of fornication, and he appeals.

JUDGMENT REVERSED AND REMANDED for FURTHER PROCEED

INGS.

E. E. Hoffmann for appellant.

M. A. Breeden, Attorney-General, for the State.

MCCARTY, C. J.

On September 5, 1907, an information was filed in the district court of Sevier county, Utah, by the district attorney, charging the defendant with the crime of fornication. The

information, so far as material here, recites that the defendant on the 17th day of August, 1907, was duly bound over by a committing magistrate to answer to the charge therein contained, and that "the said Arthur Jensen, on the 24th day of July, 1904, at the county of Sevier, state of Utah, being then and there a single and unmarried man, did willfully and unlawfully have sexual intercourse with and carnal knowledge of the body of one Almira Jensen, then and there being a single and unmarried woman." The defendant filed a motion to quash and set aside the information. One of the grounds upon which the motion was based, and the only one which we deem it necessary for us to consider, was that the complaint upon which the defendant was bound over and held by the committing magistrate to answer the charge therein made showed that the crime alleged was barred by the provisions of section 4599, Comp. Laws 1907. This section provides: "An indictment for any misdemeanor must be found or an information filed within three years after its commission." The motion was sustained, and the information quashed and set aside. The state was given until 10 o'clock a. m. the following day in which to file a new information, and the defendant's bail was continued in force, and

he was held to answer to such information when filed. The district attorney, without having the defendant taken before a committing magistrate for a preliminary hearing, filed a second or new information, in which the defendant was charged with an offense alleged to have been committed on or about December 15, 1904. The record affirmatively shows that no evidence whatever was introduced at the preliminary examination referred to that in any way tended to show defendant had sexual relations with the said Almira Jensen on December 15, 1904, or on any other day except July 24, 1904. Defendant again filed a motion to quash and set aside the information on the ground that he had never had a preliminary hearing and was never bound over and held to answer by a committing magistrate for the offense charged in the information. The motion was overruled, and the defendant, on being arraigned, entered a plea of not guilty. A trial was had which resulted in a verdict of guilty, and the defendant was sentenced by the court to four months' imprisonment in the county jail of Sevier county. To reverse. the judgment entered on the verdict, defendant prosecutes this appeal.

The particular offense charged in the complaint, upon which defendant had a preliminary examination, and for which he was held to answer to the district court, was barred by section 4599, supra, and the court, by quashing the information on that ground, in effect ruled that defendant had been committed and held to answer for an offense for which he could not be prosecuted. This ruling of the court, whether right or wrong-a question which we are not called upon to here determine-disposed of the charge under which the defendant was committed and held to answer by the magistrate. The district attorney, however, was permitted to file a second information, in which defendant was charged with having committed a like offense on December 15, 1904-an offense separate and distinct from the one charged in the complaint upon which the preliminary examination was had, and for which the defendant was bound over and held to answer to the district court, and for which he was informed against by

the district attorney in the first instance.

The record shows

that no evidence was introduced at the preliminary hearing of the offense charged in the second information, nor was the defendant bound over for that offense. Therefore the defendant was charged with and placed upon trial for an offense for which he had no preliminary examination, and for which he had never been committed and held to answer, as required by section 13, art. 1, of the Constitution of Utah, which, so far as material here, provides: "Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the aceused with the consent of the state, or by indictment with or without such examination." The purpose of this provision of the Constitution is to secure to the accused, before he is brought to trial under an information, the right to be advised of the nature of the accusation against him and to be confronted with and given an opportunity to cross-examine the witnesses testifying on behalf of the state. He is thus enabled, if he so desires, to fully inform himself of the facts upon which the state relies to sustain the charge made against. him, and be prepared to meet them at the trial. The defendant was denied this constitutional right, for the record conclusively shows that he was in the first instance put under bonds and held to answer by the committing magistrate for the specific offense alleged to have been committed on July 24, 1904, and for none other. Therefore the motion to quash and set aside the information upon which the defendant was convicted and wherein it was alleged that the crime was committed on December 15, 1904, should have been allowed, and the court erred in overruling the same.

We do not wish to be understood as holding that the ruling of the trial court in quashing and setting aside the first information, on the ground that the specific offense charged in the complaint filed with the magistrate was barred, was correct. The state did not appeal from this ruling. Therefore the question is not before us, and we refrain from expressing any opinion thereon. Nor do we hold that, in cases