Murphy v. Superior Court

KAUFMAN, P. J.

Petitioner seeks to restrain the respondent court from proceeding to hear an alleged violation of Penal Code, section 217 (assault with intent to commit murder) upon the grounds that no reasonable or probable cause existed to form a basis upon which to hold petitioner to answer. Petitioner’s point is well taken.

On October 13, 1960, petitioner came regularly before the Municipal Court of the City and County of San Francisco, having been charged with violation of Penal Code, section 217, assault with intent to commit murder. It was charged that she had committed the offense upon the person of her husband, Harry Murphy, on July 19, 1960.

Murphy testified that when he had been drinking, petitioner would hide Ms pistol. The practice occasioned several arguments.

On July 15, 1960, four days before that of the alleged offense, Murphy had asked petitioner’s company at a baseball game. Upon discovering that Murphy’s friends were to accompany them, petitioner declined the invitation with some acrimony. Murphy returned home that night to find the pistol missing from its usual resting place.

On the morning of July 19, 1960, Murphy testified he had seen his gun in the bathroom. That evening, he returned home from work and proceeded to take a shower. While he was showering, petitioner entered the bathroom and began to place the gun on a clothes hamper near the tub, saying “Here is your damn gun if that is what the beef is. ’ ’ Murphy testified that he stepped half out of the shower and “grabbed

[187]

ahold of it and gave it a yank and it went off, ’ ’ wounding him. Murphy further testified that his wife did not enter the bathroom pointing the gun at him and that his wife had never threatened to kill him. He testified that he believed his wife, petitioner, had been drinking that evening.

The above is a succinct résumé of the

sole

eyewitness testimony before the lower court relating to the occurrence. The only other testimony adduced was that of two police officers who testified that petitioner had variously related to them her location about the premises at the time of the alleged crime and that she had disclaimed knowledge of the location of the gun.