Ex Parte Vice

COOPER, P. J.

It is alleged in the petition that the prisoner is unlawfully imprisoned and restrained of his liberty by Thomas F. O’Neil, sheriff of the city and county of San Francisco. The imprisonment is claimed to be unlawful for the alleged reason that the prisoner has been committed and held to answer by a judge of the police court of the said city on a criminal charge of embezzlement without reasonable or probable cause. This is made a ground for discharging a party in

habeas corpus

proceedings. (Pen. Code, sec. 1487, subd. 7.) And a discharge in such case is the rule in the supreme court.

{Ex parte Sternes,

82 Cal. 245, [23 Pac. 38];

In re Kennedy,

144 Cal. 635, [103 Am. St. Rep. 117, 78 Pac. 34].)

The commitment in this case, so far as material here, is as follows: “The People of the State of California to the Sheriff of the City and County of San Francisco: An order having this day been made by me, that William Robert Vice, complained of as W. R. Vice, be held to answer upon a charge of felony, to wit: embezzlement, committed as follows: said William Robert Vice, complained of as W. R. Vice, did in the City and County of San Francisco, State of California, on

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or about the 24th day of October, 1906, who on or about the 13th day of April, A. D. 1903, was the Clerk, agent and servant of Union Pacific Railroad Co., a corporation duly organized and existing under and by virtue of the laws of the State of Utah, and doing business in the City and County of San Francisco, and then and there by virtue of his said employment and trust as such clerk, agent and servant on or about the 13th day of April, 1903, there came into the possession, care, custody and control of him the said William Robert Vice, complained of as W. R. Vice, five hundred and eighty-four dollars in lawful money of the United States of America, of the value of five hundred and eighty-four dollars, in lawful money of the United States of America, and the personal property of the said Union Pacific Railroad Co., a corporation as aforesaid, and he, the said William Robert Vice, complained of as W. R. Vice, after the said personal property had come into his possession, care, custody and control, as aforesaid, did, to wit, at said City and County of San Francisco, on or about said 24th day of October, A. D. 1906, willfully, unlawfully, fraudulently and feloniously convert, embezzle and appropriate the same to his own use, contrary to his trust as such clerk, agent and servant; and not in the due and lawful execution of his said trust and employment.