Burgess v. Superior Court

WAPNER, J. pro tem.

*

Petition for writ of prohibition under section 999a of the Penal Code.

Petitioner was charged with the murder of his father.

On August 14, 1968, the superior court made and entered an order denying petitioner’s motion for a dismissal of the information under the provisions of section 995, Penal Code. Petitioner based his motion on the fact that there was no probable cause shown by the prosecution to believe that the offense of murder had been committed, or that the petitioner was guilty thereof.

[421]

The' facts disclose the following: A neighbor of the decedent testified that the defendant came to his house at about 7 a.m. on the 29th day of June 1968, and told the witness that “he couldn’t get his dad to respond and to come down and see what happened to him.” When the neighbor arrived at the home he told of observing the decedent sitting on the bathroom commode and he looked like he had been scalded. The bathtub was one-half full of water. He further testified that the body was “kind of—it was dry,” and also that the floor was damp, meaning that there was some water on the floor. The neighbor went on to testify that he had known the decedent for some time, that the decedent had been ill, especially after having been in an accident and wreck and that due to this accident the decedent had a plate placed in his head and because of this the decedent just couldn’t get around. The neighbor also testified that in the month or two preceding his death, the decedent had been getting worse. The neighbor had observed the decedent fall twice within the past two months when he was there to observe him. He stated that the decedent had difficulty with his right leg and had trouble walking. With respect to the defendant’s relationship with his father the neighbor testified that they always got along well and that the defendant seemed to do everything he could for his father.

A second neighbor who lived at 2006 West 65th Place (decedent lived at 2002 West 65th Place) said that the night before at about 11 p.m. he heard a noise which he described as “baroom,” like someone falling at the decedent’s residence, but that he didn’t pay too much attention to it. He also stated that he heard a washing machine going at about the same time.