Kind v. Superior Court

California Court of Appeal Jul 13, 1956 No. Civ. 21843Published

Before: Nourse (Paul)

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Holding. The court held that the evidentiary requirements for a preliminary hearing are lower than those for trial, and therefore the testimony of a single witness is sufficient to support an information for solicitation even if the statute requires corroboration for a conviction.

Issues

Whether the testimony of a single witness is sufficient to support an information for solicitation under Penal Code section 653f at a preliminary hearing, despite the statute's requirement for corroborating evidence at trial.

Disposition. denied

Quotations verified verbatim against the opinion

“The People were not required to produce that quantum of evidence which section 653f requires be produced at the trial to prove the offense, but only sufficient evidence to give a rational appearance that the offense charged had been committed.”

“Under section 872 of the Penal Code the People need not demonstrate that the offense charged has been committed, but need only present evidence sufficient to make it seem reasonably probable that the crime has been committed”

NOURSE (Paul), J. pro tem.

Petitioner is charged by information filed by the district attorney of the county of Los Angeles with violation of section 653f of the Penal Code. His motion made pursuant to section 995 of the Penal Code to dismiss the information upon the grounds that the evidence before the committing magistrate was insufficient to prove the offense having been denied, he seeks a writ of prohibition from this court.

The information charges petitioner with willfully, unlawfully, and feloniously soliciting one M. E. Buckner to commit and join in the commission of the crime of robbery in violation of the provisions of section 653f of the Penal Code.

Section 653f reads in part as follows: “Every person who solicits another ... to commit or join in the commission of . . . robbery ... is punishable by imprisonment in the county jail not longer than one year or in the state prison not longer than five years. . . .

Such offense must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.”

[Emphasis added.]

At the preliminary hearing the only evidence produced by the People was the testimony of Buckner. He testified in detail as to his solicitation by petitioner to commit an armed robbery in the place of business of petitioner’s employer.

Petitioner does not question the sufficiency of Buckner’s testimony to show all of the essential elements of the crime charged, nor does he contend that the evidence was insufficient to give reasonable cause to believe petitioner guilty thereof; but contends that inasmuch as no other witness was called and no evidence of corroborating circumstances connecting petitioner with the crime charged was produced by the People, the evidence received by the committing magistrate was insufficient to support the information.

[102]

In order, however, that a person charged with a crime may be held to answer for it by a committing magistrate, it is not necessary that the commission of the offense be proved but only that the evidence, rationally viewed, be sufficient for it to appear that the offense charged has been committed, and that there is sufficient cause to believe that the defendant is guilty of that offense. Section 872, Penal Code, provides in part, “If, however, it

Kind v. Superior Court

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