In re Servaes

THOMPSON, J. By means of a writ of habeas corpus the petitioner seeks to obtain a discharge from custody on the ground that the evidence which was adduced at the preliminary hearing fails to show there is a reasonable probability that he is guilty of murder of the second degree, or of any public offense whatever.

[223]Habeas corpus is the proper remedy for the discharge of a prisoner who is illegally restrained of his liberty pursuant to a commitment by a magistrate when the preliminary examination fails to disclose “sufficient cause to believe the defendant guilty of a public offense”. (Sec. 871, Pen. Code; 13 Cal. Jur. 230, sec. 12.)

The record of the proceedings upon the preliminary examination of the defendant discloses no sufficient cause to believe he is guilty of murder of the second degree, or of any public offense, and he should therefore be discharged from custody. It does not appear that an information has been filed in this case.

All that the evidence discloses is that the petitioner and his wife and children were living in the same cottage with Mr. and Mrs. Albert Galpin in a country district several miles from the scene where the body of the deceased was found. It appears that the petitioner owned a revolver and one or two other guns which were kept about the house and with which he sometimes hunted. It also appears that Albert Galpin owned a gun which he, too, kept in the cottage, and that he sometimes hunted with Servaes. The deceased was a boy by the name of Paul Fragulia. It appears that the petitioner and Galpin knew Fragulia slightly, but there is no evidence they ever associated with him, or that there was any enmity between them. It must be assumed their association was of a friendly nature. Absolutely no motive for the commission of the alleged homicide appears in the record.

The Gurr road is a country highway about five miles distant from Merced. This roadway crossed an arm of a swamp which was overgrown with bulrushes. This depression was spanned by a bridge. On the night of October 4, 1933, three years before the preliminary hearing was held, at about 7 o’clock in the evening, after dark, Mr. Miolano was driving in his automobile along that Gurr road. He saw the prostrate body of a boy lying face down on the bridge beside a bicycle. Supposing the boy had been struck and injured by a passing machine, he got out and examining the body he discovered that it was Paul Fragulia, whom he knew. The body was still lax and warm. Rolling the body over, Miolano found lacerations on his face, indicating that he had probably fallen on his face. Miolano had previously seen no machine or person in that vicinity, nor had he heard the firing of a gun. He