PETERS, P J. I dissent.
The record of the preliminary examination, so far as this [467]petitioner is concerned, demonstrates that there was no evidence, as distinguished from mere guess, surmise or conjecture, to connect this petitioner with the offense with which she is charged.
I have no quarrel with the law stated in the majority opinion—it is with the application of that law to the facts that I disagree. We start with the basic premise that in order to hold an accused to answer under section 872 of the Penal Code there must be “sufficient cause to believe the defendant guilty.” Admittedly that means “reasonable and probable cause” (see many cases collected 7 Cal.Jur. § 120, p. 982) and concededly that phrase means evidence of such character as to lead a man “of ordinary prudence conscientiously to entertain a strong suspicion that a prisoner is guilty.” (People v. Wisecarver, 67 Cal.App.2d 203, 209 [153 P.2d 778]; see, also, People v. Novell, 54 Cal.App.2d 621 [129 P.2d 453]; In re McCarty, 140 Cal.App. 473 [35 P.2d 568]; cases collected 7 Cal.Jur. § 120, p. 982.) Such cases as Greenberg v. Superior Coxirt, 19 Cal.2d 319 [121 P.2d 713], and Dong Haw v. Superior Court, 81 Cal.App.2d 153 [183 P.2d 724], have established beyond question that where there is no evidence, or no reasonable probability of petitioner’s guilt based upon evidence, the superior court has no jurisdiction to try the accused, and that the trial, in such event, should be stopped by a writ of prohibition. It certainly needs no citation of authority to establish the principle that a mere surmise, guess or conjecture does not constitute “evidence” in a legal sense. As was aptly stated in the Dong Haw case where the suspicious circumstances were much stronger than those here, but where, nevertheless, a writ of prohibition issued (p. 158) : “Conspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy.” (See, also, People v. Long, 7 Cal.App. 27 [93 P. 387]; People v. Zoffel, 35 Cal.App.2d 215 [95 P.2d 160].)
The reasons behind the rule that entitle one accused either by indictment or information to a writ of prohibition where no “evidence” is produced before the grand jury or committing magistrate are obvious and are based on sound public policy. No person should be forced to trial unless the district attorney produces before the grand jury or committing magistrate some evidence sufficient to raise at least a reasonable suspicion that the accused is guilty. That does [468]not mean as some district attorneys and the attorney general have, on occasion, contended, that the district attorney must disclose his entire case before the grand jury or .committing magistrate, which obviously would be unfair to the prosecution, but it does mean that he must produce some evidence that tends to connect the accused with the crime charged. Otherwise the criminal processes can and will be abused.
Now how do these admitted rules of law apply to this case? Caulfield met the petitioner at a bar. She opened the conversation and requested that he drive her to a designated spot to look over a horse ranch. There is not one word in the record (and we are limited to the record) that petitioner knew Durham, or that Durham saw, or that petitioner saw, that Caulfield had $50 in his wallet. So far there is nothing remotely resembling any evidence that this “pickup” in the bar was any different from any other “pick-up,” or was for the purpose of robbery. The two then drove to the side road designated by petitioner and proceeded along this road for about 50 yards. The majority opinion states that “Instead of driving up the road to - the ranch house when the car stopped petitioner suggested that they walk from where they were,” and from this statement the opinion implies that petitioner picked the spot for the subsequent holdup. This inference is not warranted by the record. It was Caulfield who stopped the ear. The only testimony on this point was by Caulfield, and is as follows: “we drove, perhaps, 50 yards from the highway. At that time, I parked the car.” (P. 6.) And again at page 17 he was asked “And you stopped at this point?” To which he answered “Yes.” There is no evidence upon which a reasonable suspicion can be predicated, or in fact even a guess made, that it was petitioner who suggested that they stop at that spot. The evidence is to the contrary.
It is also stated in the majority opinion that after petitioner suggested they walk up the hill “they were presumably, in view of her statements at the bar, going to walk to the ranch house where she could talle to the rancher,” and then the opinion infers that this is a most suspicious circumstance in that an innocent person would not have left her purse in the automobile if she had intended to walk to the ranch house. There is no evidence at all upon which the inference that they intended to walk to the ranch house can be based. [469]The only evidence on this point as to why they walked up the hill was the following, appearing on page 17: “Q. And you and she left the car ? A. Yes. Q. For what purpose ? A. To look over the place, just to walk around. Q. What were you going to look at? A. We just looked at the place to find out where the ranch house was, what the place looked like.” Whatever purpose the parties may have had in walking up the hill on a dark night (and there might be several reasonable guesses on that question) certainly the inference indulged in by the majority that they were going to walk to the ranch house finds no support in the record, and is contrary thereto. In this respect, as well as in the respect already discussed, the majority have -simply filled in the gaps in the district attorney’s proof and indulged in what cannot be characterized as even reasonable guesses, because the guesses are not only not based upon the record but are contrary thereto.
It thus appears that except for the fact that petitioner suggested the road to take, but not the stopping place, there is not one suspicious circumstance up until the time the robber appears. And then what happens? Under the robber’s orders petitioner removes the wallet from Caulfield’s pocket. The theory of the district attorney was, of course, that she was a confederate of the robber—that she was a participant in the robbery. But what does this supposed robber do? She removes $30 in bills from the wallet and leaves in the wallet a $20 bill, and returns the wallet to Caulfield! Then the robber orders her to remove Caulfield’s watch. The theory was that the robber must have observed this watch while petitioner and Caulfield were in the bar drinking. But petitioner tells the robber that there is no watch. The majority opinion seeks to explain this by Caulfield’s testimony that he was wearing a jacket that partially covered the watch, but, if this explanation is sound, Durham, sitting across the room from Caulfield saw the watch, but the petitioner, who it is assumed was plotting to rob Caulfield, after sitting next to him for over half an hour in the bar, did not see the watch! It is obvious that up to this point there is no evidence, or even a suspicious circumstance, to connect petitioner with the robbery.
Then what happens? The robber asks petitioner for her purse. She says that it is in the car. He orders her to get it. She goes to the car, gets her purse and coat, and runs [470]away—in what direction does not appear. It should be here noted that there is not one word of testimony that she did not immediately report the affair to the police. For all that appears, she may have immediately informed the police. There is no support for any inference that she did not.
The majority opinion talks about the unconcern of the robber at this point, and makes much of the fact that the robber must have been very dumb indeed to permit petitioner to go back to the car alone to get her purse. While that may warrant a guess that the two were confederates, it equally warrants the surmise that the robber was dumb, and that petitioner took advantage of his dumbness to escape and to save her purse.
The majority opinion places great reliance on what is characterized as the "combination of suspicious circumstances.” Upon analysis each "suspicious circumstance” turns out to be an inference not justified by the record—a mere guess on the part of the majority, and a guess not based upon the record. If one guess does not constitute evidence sufficient to constitute reasonable and probable cause, two or more guesses cannot be held to constitute such cause.
Those are the facts. There is not one bit of evidence that petitioner ever knew Durham, who was identified as the robber by Caulfield, and I submit that there is not one bit of evidence to support a "strong” or "reasonable” suspicion that petitioner was a participant in the robbery. The inferences indulged in by the majority, as already pointed out, are simply guesses unsupported by the evidence.
I am not so naive as to believe that petitioner may not have been a confederate of the robber. She may have been, and, from what has transpired since the preliminary examination, she probably was. But we have no legal right to consider what has happened since the date of the preliminary examination. The point is that, at that examination, the district attorney just failed to connect her with this crime. We cannot and should not consider facts not appearing in the record. We are limited to the record. In the proper administration of criminal justice it is required that the district attorney produce at the preliminary examination some evidence to connect the accused with the crime charged. If he fails to do so, as he did in this case, the accused is entitled to a writ of prohibition from this court. In my opinion such a writ should here issue.