Evans v. Superior Court in and for San Bernardino County
| Decision Date | 21 February 1950 |
| Citation | 96 Cal.App.2d 187,214 P.2d 579 |
| Court | California Court of Appeals Court of Appeals |
| Parties | . Civ. 4132. District Court of Appeal, Fourth District, California |
Maybelle Cox Evans and Wardwell D. Evans, in pro. per.
Jerome B. Kavanaugh, District Attorney, Theo. G. Krumm, Chief Deputy District Attorney, San Bernardino, for respondents.
This is an application for a writ of prohibition, brought under section 999a of the Penal Code.
On June 27, 1949, a preliminary examination was held in the justice's court of San Bernardino Township, in the case of The People v. Paul Sorenson, in which the defendant was charged with pimping and pandering. The court made an order holding the defendant to answer, ordering him committed to the custody of the sheriff, and fixing bail. Admittedly, this order, with the complaint upon which it was indorsed, was immediately delivered to the clerk of the superior court, and an information based upon said order was filed in that court on July 8, 1949.
On December 2, 1949, an information was filed in the superior court charging the petitioners herein with a violation of section 138 of the Penal Code. It was charged that on July 2, 1949, they offered to receive and did receive a bribe of $100 upon an understanding and agreement that Maybelle Cox Evans would not attend upon the trial and hearing of the case of People v. Sorenson, then pending in the superior court, she being a person about to be called as a witness in that action and proceeding. On December 9, 1949, these petitioners moved, under section 995 of the Penal Code, to have this information set aside on the ground that they had been committed without reasonable or probable cause. This motion was denied and the cause set for trial. Petitioners then applied to this court for a writ prohibiting further proceedings in that matter.
The sole contention here made is that no action against Paul Sorenson was 'pending' in the superior court on July 2, since the information was not filed until July 8, and that anything done on July 2 by the petitioners could not have constituted a violation of Section 138. It is argued that since no such action was pending on July 2, Maybelle Cox Evans could not then have been a person about to be called as a witness in said action or proceeding, as charged in the information.
In support of this contention petitioners rely upon the case of People v. Thompson, 84 Cal. 598, 24 P. 384. That case involved the admissibility into evidence of a conditional deposition taken pursuant to the provisions of section 879 and 882 of the Penal Code. Under these provisions such a deposition could be taken only when certain things appeared to the satisfaction of the Judge of the court in which 'the action is pending.' It was held that these conditions were not met and that no action was pending in that court when the deposition was taken, since neither a valid information nor any commitment of any kind from the committing magistrate had then been filed in the superior court. It was, therefore, held that at the time the deposition was taken there was nothing before the superior court which gave it jurisdiction to try the defendant.
In the instant case, it appears that a valid order holding the defendant to answer in the case of People v. Paul Sorenson, had been filed in the superior court on June 27, 1949. The district attorney had fifteen days thereafter in which to file the information. Penal Code, Sec. 809. Whether it may be said, technically, that an action is pending in the superior court in the interval between the filing of the holding and commitment order and the filing of the information, there is at least an existing 'proceeding' which is preliminary to, and which normally leads to, a 'trial.'
Section 138 of the Penal Code is not, by its terms, specifically made applicable only where an action in a particular court is actually pending. It refers to one 'who is a witness, or is about to be called as such.' While it refers to the 'trial or proceeding'...
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