
    STATE of Louisiana v. Gregory ST. ANN et al.
    No. 53845.
    Supreme Court of Louisiana.
    Aug. 13, 1973.
   In re: The State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ Denied. In the absence of a grand jury indictment, when as here only an information is filed, the trial judge has discretion to order a preliminary examination at which the state must show probable cause to continue in custody a person whom no grand jury has indicted. La.C. Cr.P. Art. 296. We find no abuse of trial court’s discretion here. However, the release from custody is stayed for seventy-two hours, within which the state may show probable cause for continued custody. See order. The denial is without prejudice to the right of the parties to move for a speedy trial.

SANDERS, C. J., is of the opinion that a writ should be granted, but concurs in the continuation of the stay order.

SUMMERS, J.;

I dissent from the order issued here. In view of the fact that this case was fixed for trial on August 23, 1973, — ten days hence — and the trial judge granted a continuance upon defendant’s motion, the substantive purpose of the preliminary hearing will be satisfied by a trial on the merits in ten days. Obviously, the defendants are using this preliminary hearing .as a device to discover the State’s case, which this Court has heretofore consistently prohibited. In my view the order continuing the trial on its merits was improvidently issued and constitutes an abuse of discretion on the part of the trial judge. The motion for a preliminary hearing is now moot and the trial should proceed on the date fixed by the District Attorney.

DIXON, J., is of the opinion that the trial court was correct and the writ should be denied, without a stay.

MARCUS, J.;

I am of the opinion that the writ should be granted with a stay order. I dissent from the order issued herein.

Relator’s application for writs in the above entitled case is denied, after having been duly considered. Moreover, the original stay order issued in this matter is recalled and set aside.

However, a stay order of twenty-four (24) hours is granted in which the State may move for a preliminary examination, which, if requested, is to be heard and disposed of by the Court within seventy-two (72) hours. The burden of proof at that hearing is upon the State to show probable cause.

Failing to move timely for the preliminary examination or failing to show probable cause upon the hearing of the preliminary examination, the defendants are ordered released.

If the State timely moves for the preliminary examination within the twenty-four hour stay period, an additional forty-eight (48) hours is granted for the hearing and disposition of the preliminary examination. The State’s right to move for a speedy trial is not affected by this order.  