Greenberg v. Superior Court

TRAYNOR, J. —

The grand jury of the City and County of San Francisco returned an indictment charging petitioner and four others with conspiracy to commit grand theft in violation of Penal Code section 182. The indictment charged that all of the persons named therein procured from the Fireman’s Fund Insurance Company a policy of automobile insurance on an automobile that had already been wrecked, that they then reported to the company that the car was wrecked . at a time after the date of issuance of the insurance, and that the company paid them for the asserted loss. After petitioner was arraigned, he moved to quash the indictment on the ground that it was void and that the court was without jurisdiction to proceed thereon because there was no evidence before the grand jury tending to support the charges made against him. His motion was denied and he demurred to the indictment. The court overruled the demurrer and set the case for trial. Petitioner has no appeal from either the order of the court refusing to quash the indictment or the overruling of the demurrer, and has therefore petitioned this court

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for a writ of prohibition to restrain the lower court from proceeding with the trial.

The transcript of the testimony upon which the indictment was based contains no evidence even remotely supporting the charges made against petitioner. Respondent contends, however, that in California prohibition will not lie to restrain a court from proceeding with the trial of a petitioner on the ground that there was no evidence presented to the grand jury of his guilt of the offense charged.

Prohibition will issue to restrain an inferior tribunal from acting in excess of its jurisdiction if there is no plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ. Proc., sections 1102, 1103.) Public offenses against the State of California must, with few exceptions, be prosecuted by indictment or information, and a court has no jurisdiction to proceed with the trial of an offense unless a valid indictment or information has first been presented. (Cal. Const., art. I, section 8; Pen. Code, sections 682, 888.) An information is a written accusation of crime made by a district attorney, without action by a grand jury, after a magistrate, at a preliminary hearing, has found sufficient cause to believe the defendant guilty of a public offense and has ordered him committed. (Cal. Const., art. 1, section 8; Pen. Code, section 809; see cases cited in 7 Cal. Jur. 967, note 15.) If there is no reasonable or probable cause for the order of the magistrate the defendant may be discharged on