People v. Willmirth

CONLEY, P. J.

The state appeals from an order of the superior court setting aside an information, pursuant to section 995, subdivision 2, of the Penal Code, charging the defendant with possession, planting and cultivating marijuana. Based on the evidence received at the preliminary examination, the judge of the municipal court held that it appeared to him that the offense of violation of section 11530 of the Health and Safety Code had been committed, and that there was reasonable cause to believe that the defendant was guilty thereof. The defendant was there held to answer and the arraignment of the defendant followed the filing of the information in

the

superior court. It alleged that: “The said Edwin Earl Willmirth, on or about the thirteenth day of June, nineteen hundred and sixty-six, at and in said County of Stanislaus, State of California, and prior to the filing of this information, did wilfully, unlawfully and feloniously have in his possession, and did plant and cultivate marijuana, cannabis sativa. ’ ’

At the outset, it should be borne in mind that evidence sufficient to hold a defendant to answer need not be so strong or convincing as the evidence necessary to convict after trial. The rule is thus expressed clearly and conclusively by the Supreme Court in the case of

Bompensiero

v.

Superior Court,

44 Cal.2d 178, 183-184 [281 P.2d 250], where it is said: “Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.] An

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indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (See also

People v. Nagle,

25 Cal.2d 216, 222 [153 P.2d 344].)

And, as- is said in