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STATE of Missouri ex rel. Larry M. WOODS, Prosecuting Attorney of Boone County, Missouri, Relator v. Walter D. RATLIFF, Notary Public within and for the County of Boone, State of Missouri
PER CURIAM.
In this proceeding relator seeks a preliminary writ of prohibition to prevent respondent Notary Public from swearing and taking the depositions of State’s witnesses, after the filing of felony complaints and before the holding of preliminary hearings. We agree with relator that our Rule 25.10, 42 V.A.M.S., permitting depositions “in any criminal case pending in any court” does not authorize the taking of depositions under these circumstances; a criminal case is not instituted or pending until an information is filed or an indictment returned. State v. Bithorn, Mo., 278 S.W. 685; State v. McNeal, 304 Mo. 119, 262 S.W. 1025. The issuance of a writ of prohibition is discretionary. Mansur v. Morris, Banc, 355 Mo. 424, 196 S.W.2d 287. We have determined that in this instance the ends of justice will best be served by declining to issue the writ. However, it is our view that the taking of depositions would be improper, and that the magistrate may proceed with the preliminary hearings.
Petition for preliminary writ of prohibition denied.