Gascon v. Superior Court

NOURSE, J. pro tem.

*

Pursuant to the provisions of 999a of the Penal Code, petitioner seeks a writ of prohibition predicated upon the grounds that there was no competent evidence before the committing magistrate to establish probable cause for his being held to answer and that the respondent court erred in denying his motion, made pursuant to section 995 of the Penal Code, to set aside the information. We have concluded that the peremptory writ of prohibition should issue as prayed for.

The facts as established by the evidence taken before the committing magistrate are: About 8 p.m on January 7, 1959, two police officers of the city of South Gate observed an automobile lawfully parked on Hildreth Street near the intersection of Firestone in the city of South Gate. This is a commercial and industrial area but both Hildreth and Firestone are well lighted and a liquor store facing on Firestone a short distance from the intersection was open. The officers observed a woman sitting in the car and approached the ear and questioned her. She stated she was waiting for her boy friend who had gone to the liquor store to purchase some cigarettes. At that time the officers saw the defendant approaching the parked car. They intercepted him before he reached it. They questioned him, asking where he had been, to which he replied that he had been to the liquor store to purchase some cigarettes for his girl friend. They asked him his name and he gave it. They asked him whether he had been “busted” before, to which he answered in the affirmative. They asked him several other questions but did not ask him for his driver’s license. He appeared nervous while being questioned. After questioning, the officers told petitioner they were going to search him, whereupon defendant attempted to flee. He was overtaken when he had gone 25 to 35 feet but during his flight he threw

[358]

some objects from his sweater pocket which included a small tinfoil package which the officers later recovered. It was found to contain marijuana.

At the time of the incident above recounted, defendant was at liberty on bail but the officers did not know this fact and had no reason to suspect that the defendant had committed a crime nor did they have any search warrant or warrant for his arrest. At the preliminary hearing, over timely objections, the marijuana was admitted into evidence. This evidence constituted the only proof of the corpus delicti.