Grissom v. Superior Court

VAN DYKE, J. Petitioner seeks a writ from this court prohibiting the Superior Court of Tehama County from proceeding further upon an information charging him with man[706]slaughter. An alternative writ was issued and the matter has been briefed, argued and submitted for decision.

The petition alleges that on July 31, 1950, the District Attorney of Tehama County filed a criminal complaint in the Justice’s Court of Red Bluff, accusing petitioner of the crime of manslaughter in that petitioner did on or about July 30th wilfully, unlawfully, feloniously and without malice kill one Warren Shermmer; that, on August 16th following, a preliminary examination was conducted by the justice’s court; that said court then ordered petitioner to be held to answer for the offense charged; that no evidence was introduced at said preliminary hearing tending to prove, or in any way proving, that the crime of manslaughter had been committed by petitioner or at all; that over petitioner’s objection the committing magistrate erroneously admitted into evidence an extrajudicial statement of petitioner. Petitioner concludes that the order of commitment was made without reasonable or probable cause and that he is therefore entitled to the writ prayed for. Before he filed his petition here, petitioner’s motion presented to the superior court to vacate and set aside the information upon the foregoing grounds was denied.

The record of the preliminary examination shows the following : On the night of July 30, 1950, the deceased, Warren Shermmer, entered a bar in Tehama County, called “The Mint.” The petitioner and his companion, Claude Lee, had arrived at the bar some 20 minutes earlier. There were six or seven people in the barroom, including petitioner and the deceased. When Shermmer entered the barroom he took a position at the bar near the entrance. Petitioner and Claude Lee were at the other end of the bar some 30 feet away. The bartender was just across the bar from Shermmer. Claude Lee testified that when Shermmer came in petitioner saw him and said, “Watch me get a drink.” Lee replied, “Don’t cause any trouble,” and petitioner said he was going to get a drink out of it. The bartender observed that Shermmer appeared to be intoxicated to such an extent that when requested he refused to serve liquor to him, whereupon Shermmer asked the bartender to “give the rest of them a drink.” Petitioner came up to where Shermmer was standing and took a position at the bar just to Shermmer’s right. Shermmer greeted him, saying, “Hello, Lee, come on I will buy you a drink,” to which petitioner replied, “I know damn well and good you will; I will take it” and he slapped the bar as he spoke. The bartender turned to get a drink for peti