In Re Cordish

California Court of Appeal Nov 7, 1928 No. Docket No. 1472.Published

Before: Sturtevant

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Holding. The court denied the petition for a writ of habeas corpus, finding that there was reasonable and probable cause to hold the petitioners to answer for the charged felony.

Issues

Whether the evidence taken in the police court was sufficient to support the order holding the petitioners to answer.
Whether the court has the authority to weigh evidence taken before a committing magistrate in a habeas corpus proceeding.

Disposition. Denied and remanded

Quotations verified verbatim against the opinion

“In this proceeding the power of this court is to ascertain whether the petitioners were held to answer “without reasonable or probable cause.””

“an attack on the evidence taken before the committing magistrate does not authorize this court to weigh the evidence.”

“we find there was reasonable and probable cause for holding the petitioners to answer before the superior court.”

STURTEVANT, J.

This is an application for a writ of

habeas corpus.

From the sheriff’s return it appears that that officer held the petitioners under an order of the police court of San Francisco holding the petitioners to answer upon a charge of felony and committing the petitioners to the custody, of the sheriff until they be legally discharged. To the sheriff’s return the petitioners did not interpose any answer of any kind or nature. (Pen. Code, sec. 1484.)

In their brief the petitioners concede that the complaint on file in the police court was an attempt “to charge said petitioners with a violation of section 14 of the Corporate Securities Act.” (1 Deering’s Gen. Laws 1923, Act 3814, pp. 1399, 1407.) If so, the complaint may not be attacked in this proceeding.

{Ex parte Ruef,

150 Cal. 665 [89 Pac. 605].) They make a meticulous attack on the evidence taken in the police court and contend that the evidence was insufficient to support the order holding the petitioners to answer. On the record as made, the evidence taken in the police court is not properly before this court and we are not at liberty to consult it. (Pen. Code, sec. 1484.) If, however, we pick up that evidence and examine it we are unable to grant the application of the petitioners. Bearing in mind that this is an application for a writ of

habeas corpus,

an attack on the evidence taken before the committing magistrate does not authorize this court to weigh the evidence. That function will be exercised by a jury at the proper time.

{In re Leonardino,

9 Cal. App. 690, 693 [100 Pac. 708].) In this proceeding the power of this court is to ascertain whether the petitioners were held to answer “without reasonable or probable cause.” (Pen. Code, sec. 1487, subd. 7.) If there was either reasonable or probable cause the petition should be denied. There are many reasons why it is unnecessary, and, indeed, improper, to recite and comment on the evidence taken before the committing magistrate. As stated above our power is not to weigh that evidence. Further

[682]

In Re Cordish

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STURTEVANT, J.

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