People v. Bucher

California Court of Appeal Nov 17, 1959 No. Crim. 3540Published

Before: Kaufman

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Holding. The court held that a superior court has the discretion to dismiss an information under Penal Code section 995 when a magistrate violates the requirement of Penal Code section 861 that a preliminary examination be completed in one session unless a postponement is supported by a showing of good cause via affidavit.

Issues

Whether a magistrate's postponement of a preliminary hearing without a supporting affidavit, over the defendant's objection, constitutes an illegal commitment under Penal Code section 995.
Whether the superior court has the discretion to dismiss an information based on a violation of Penal Code section 861.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it.”

“There was, therefore, discretion and power on the part of the superior court to find under the facts of this ease that there was a violation of that section [Pen. Code, § 861] which affected the legality of Bucher’s commitment.”

KAUFMAN, P. J.

The State appeals from an order granting the defendant’s motion to dismiss the information, under section 995 of the Penal Code, on the specific grounds of failure of the People to comply with section 861 of the Penal Code.

The defendant, E. H. Bucher, was arrested and placed in custody on February 7, 1958. The preliminary hearing began at 3 p. m. on Thursday, February 27th. Four witnesses were examined by the People and cross-examined by the defendant’s counsel. This evidence indicated that in response to a telephone call from Mrs. Glover on October 21, 1957, the defendant had a conversation with her at her home. This conversation resulted in a contract between Mrs. Glover and a Mr. J. W. Cook (whom she did not know) for the remodeling of Mrs. Glover’s home at 1839-8th Avenue in San Francisco. The total cost of the remodeling was $3,675 and the defendant requested that the payments be made progressively. The contract was signed by Mrs. Glover. The defendant signed the name of J. W. Cook. At the time the contract was signed, the defendant did not have a contractor’s license. On November 6th, defendant represented to Mrs. Glover that he needed to pay his men and for the material used in the remodeling of the home. Mrs. Glover gave him a check for $2,000 on November 6th; a check for $1,000 on November 13th; and a cheek for $576 on No

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vember 20th. At the time of the preliminary examination, over one-half of the work contracted for had been completed.

Mr. Thornton, a masonry contractor, received a telephone call from a Mr. Cook, who asked for an estimate on the installation of a precast staircase at the Glover residence. Mr. Thornton installed the staircase and saw the defendant at the scene of the job. Mr. Thornton was never paid for his work. A Mr. Connors, a general contractor, was called by “Mr. Cook” who inquired about payment for the installation of a door at the Glover residence. Mr. Cook said that he had another job at the Glover residence, and asked for an estimate on the cost of installing the door. A price of $130 was agreed upon and the door installed. Mr. Connors was never paid for his work.

The court then stated that there was not a sufficient showing to hold the defendant to answer. The district attorney then informed the court that one material witness was missing as the People had not been able to serve a subpoena on him. After a discussion off the record, the following took place:

People v. Bucher

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KAUFMAN, P. J.

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