Evans v. Superior Court

[188]

BARNARD, P. J.

This is an application for a writ of prohibition, brought under section 999a of the Penal Code.

On June 27, 1949, a preliminary examination was held in the Justice’s Court of San Bernardino Township, in the case of

People

v.

Paul Sorenson,

in which the defendant was charged with pimping and pandering. The court made an order holding the defendant to answer, ordering him committed to the custody of the sheriff, and fixing bail. Admittedly, this order, with the complaint upon which it was indorsed, was immediately delivered to the clerk of the superior court, and an information based upon said order was filed in that court on July 8, 1949.

On December 2, 1949, an information was filed in the superior court charging the petitioners herein with a violation of section 138 of the Penal Code. It was charged that on July 2, 1949, they offered to receive and did receive a bribe of $100 upon an understanding and agreement that Maybelle Cox Evans would not attend upon the trial and hearing of the case of

People

v.

Sorenson,

then pending in the superior court, she being a person about to be called as a witness in that action and proceeding. On December 9, 1949, these petitioners moved, under section 995 of the Penal Code, to have this information set aside on the ground that they had been committed without reasonable or probable cause. This motion was denied and the cause set for trial. Petitioners then applied to this court for a writ prohibiting further proceedings in that matter.

The sole contention here made is that no action against Paul Sorenson was “pending” in the superior court on July 2, since the information was not filed until July 8, and that anything done on July 2 by the petitioners could not have constituted a violation of section 138. It is argued that since no such action was pending on July 2, Maybelle Cox Evans could not then have been a person about to be called as a witness in said action or proceeding, as charged in the information.