Malleck v. Superior Court

California Court of Appeal Jun 19, 1956 No. Civ. 17248Published

Before: Kaufman

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Holding. The court held that the evidence presented at the preliminary examination was insufficient to establish reasonable or probable cause to believe the petitioner committed the charged assault. The evidence merely placed the petitioner in the vicinity of the crime and showed he possessed ammunition, which was insufficient to connect him to the offense without resorting to speculation.

Issues

Whether the evidence presented at the preliminary examination was sufficient to establish reasonable or probable cause to hold the petitioner for trial on a charge of assault with a deadly weapon.

Disposition. Writ of prohibition issued.

Quotations verified verbatim against the opinion

“Applying the law to the facts adduced at the preliminary hearing it is clear that there is no reasonable or probable cause to believe that the petitioner has committed the crime charged.”

“Speculation and conjecture would have to be indulged in to connect petitioner with the crime.”

KAUFMAN, J.

This is a petition for writ of prohibition.

The petitioner who has been charged in an information with violation of Penal Code, section 245 (assault with a

[397]

deadly weapon) seeks the writ on the ground that he was committed without reasonable or probable cause. If this contention is correct a writ of prohibition is a proper remedy. (Pen. Code, § 999a.)

The petitioner first argues that no evidence was introduced at the preliminary examination to establish that a crime had been committed. Nathan A. Thornton, the alleged victim of the assault, testified that while on duty as a sentry at the Marine Supply Forwarding Depot at San Francisco he was “shot at three times.” He testified he “heard the report of the rifle and then the zing of the bullet as it came past me,” he “heard another report of a bullet fired and the bullet zing passed me,” and “another shot was fired and a bullet zinged past.”

Petitioner states “there have been no cases holding an assault can be established by circumstantial evidence without a witness to the assault who can identify the defendant as the perpetrator or without a wound from which the assault can be inferred.” For this proposition he cites cases where either one or the other was present. No cases have been found where a conviction for an assault has been upheld where there either was no witness identifying the perpetrator or a wound, but no cases have been found where a conviction was reversed on this ground. Even if the judgment of conviction would be reversed if the only evidence introduced at the trial was that introduced at the preliminary examination, the standard under Penal Code, section 995 of “reasonable or probable cause” is not the same as that required for conviction. Reasonable or probable cause’ means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.

[People

Kilvington,

104 Cal. 86 (37 P. 799, 43 Am.St.Rep.

Malleck v. Superior Court

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KAUFMAN, J.

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