In Re Scott

TYLER, P. J.

Application for a writ of

habeas corpus.

The petition recites that applicant is restrained of his liberty by the sheriff of Alameda County. That said restraint is illegal in this, that petitioner has been committed on a criminal charge of grand larceny of an automobile without reasonable or probable cause therefor, as the evidence of the prosecuting witness taken at the preliminary examination shows that she voluntarily delivered title to and possession of the automobile to petitioner. The return

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of the sheriff recites that petitioner was received by him into custody by virtue of a commitment issued out of the police court of the city of Oakland charging grand larceny by trick and device. That thereafter and on September 7, 1927, the district attorney of Alameda County filed an information charging petitioner with the commission of grand theft, based upon the same transaction shown at the preliminary examination; that on the following day, September 8, 1927, the superior court in and for Alameda County issued a writ of

habeas corpus

on behalf of petitioner, returnable September 12th and on said day, after hearing, discharged the writ. That on September 12, 1927, petitioner was duly arraigned on the information above mentioned and plead not guilty. The case was set for trial for September 26, 1927, by consent. Prior thereto, on September 23d, petitioner filed the present application in this court. Pending the hearing thereof trial was had which resulted in conviction. The facts elicited at the preliminary examination show that petitioner in May, 1927, bought eighty acres of land from the Central Pacific Railway Company. This land, which was unimproved, was situated in the county of Butte and according to the testimony of the assessor of the county it was assessed for $2.50 per acre. After the purchase of the land, petitioner, with one John J. Martin, who was charged with the same offense, appeared at the office of a title insurance company in Oroville and inquired for and procured insurance of title upon the same. At that time petitioner stated that he was going to sell the property and take back certain trust deeds thereon, the sale to be made to Martin, who was introduced as Mr. Clark. Thereafter advertisements appeared in an Oakland newspaper wherein petitioner announced that he was willing to trade or exchange certain trust deeds for second-hand automobiles. In answer to these advertisements, the complaining witness, Mrs. Cumbers, telephoned petitioner at his apartment in Oakland and made an appointment to see him. A meeting of the parties was had, at which time petitioner informed Mrs. Cumbers that he had sold a ten-acre tract in Butte County to a man named Clark for $2,500, and had taken back a promissory note and trust deed from Clark for $1,350. This land was a portion of the tract above referred to. He represented that the