People v. Perry

STONE, J.

The People appeal from an order setting aside an information which charged the defendants with violation of Penal Code section 243, battery against a police officer, and violation of Penal Code section 148, resisting arrest.

The case came before the superior court, just as it is before us, on the reporter’s transcript of the preliminary examination held in the Dos Palos Judicial District Court of the County of Merced, State of California. The events upon which the information is based occurred at the Wheel Inn Café, Route 1, Box 114A, Dos Palos T. Defendants were quarreling in front of the café at 1 o’clock in the morning. The proprietor went outside and asked them to quiet down, warning that if they didn’t do so, he would call a police officer. Defendants continued their raucous quarreling, which originated over the attention defendant Delmar Lee Perry was paying to a woman other than defendant Norma J. Perry, his wife. The Constable of Dos Palos Township was in the café, and the proprietor asked him to quiet the three defendants.

The constable walked outside the building, observed the defendants, and asked them to stop cursing and to go home. Up to that point it isn’t clear whether the family friend, defendant Melba Munns, was carrying the standard of the hus

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band or the wife, but once the constable arrived there is no question that all three defendants considered him their common adversary. The testimony of the constable reveals violence directed against him by all three defendants; his testimony is largely corroborated by the proprietor of the Wheel Inn Café and a waitress.

As might be expected, defendants’ testimony contradicts that of the prosecution witnesses. They justify the force used against the constable upon the ground they were resisting an unlawful arrest and upon the right of self-defense.

The record indicates that the superior court judge who heard the motion to set aside the information, believed the defendants. However, the testimony of the constable, the proprietor and the waitress amply supports the order holding the three defendants to answer, and obviously this testimony was believed by the committing magistrate. “. . . the test is not whether the evidence establishes the defendant’s guilt beyond a reasonable doubt, but only whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion of the guilt of the defendant.”