Malleck v. Superior Court In and For City and County ofSan Francisco
| Decision Date | 19 June 1956 |
| Citation | 142 Cal.App.2d 396,298 P.2d 115 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph MALLECK, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Civ. 17248. |
Edward L. Cragen, San Francisco, for petitioner.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
This is a petition for writ of prohibition.
The petitioner who has been charged in an information with violation of Penal Code, section 245 () seeks the writ on the ground that he was committed without reasonable or probable cause. If this contention is correct, a writ of prohibition is a proper remedy. Penal Code, sec. 999a.
The petitioner first argues that no evidence was introduced at the preliminary examination to establish that a crime had been committed. Nathan A. Thornton, the alleged victim of the assault, testified that while on duty as a sentry at the Marine Supply Forwarding Depot at San Francisco he was 'shot at three times.' He testified he 'heard the report of the rifle and then the zing of the bullet as it came past me', he 'heard another report of a bullet fired and the bullet zing passed me', and 'another shot was fired and a bullet zinged past.'
Petitioner states 'there have been no cases holding an assault can be established by circumstantial evidence without a witness to he assault who can identify the defendant as the perpetrator or without a wound from which the assault can be inferred.' For this proposition he cites cases where either one or the other was present. No cases have been found where a conviction for an assault has been upheld where there either was no witness identifying the perpetrator or a wound, but no cases have been found where a conviction was reversed on this ground. Even if the judgment of conviction would be reversed if the only evidence introduced at the trial was that introduced at the preliminary examination, the standard under Penal Code, section 995 of 'reasonable or probable cause' is not the same as that required for conviction. "Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [People v. Kilvington, 104 Cal. 86, 37 P. 799; People v. Smith, 141 Cal.App.2d 399, 296 P.2d 913.] 'Reasonable or probable cause' may exist although there may be some room for doubt.' People v. Nagle, 1944, 25 Cal.2d 216, 222, 153 P.2d 344, 347. The testimony at the preliminary examination seems sufficient to make it probable that Thornton was assaulted with a deadly weapon.
However, there is the question as to what evidence, if any, was produced to connect the petitioner with the crime. The petitioner is a night watchman at the Ace Auto Wrecking Yard which adjoins the Depot on the east. The Southern Pacific has a right of way and raised tracks immediately to the east of the Depot and the Wrecking Yard is immediately beyond that. Thornton was asked whether he could tell where the shot came from and answered 'Well, from somewhere along the railroad tracks, as near as I could tell.' The third shot he said came 'From approximately the same general area, I suppose.' Thomas A. Morris, a San Francisco police officer, testified that on the same evening, while investigating the incident, he climbed on the railroad tracks. 'And on arriving at the top I flashed my flashlight around to see if I could spot anything or anybody and I heard a shot and I heard the wind of a bullet.' 'After the shot I fell to the ground and Sergeant Sweeting, he came up behind me and he went down on his knee and I, with the flashlight in my hand, I raised it over my head about a minute and a half, maybe two minutes when I spotted a man in the Ace Auto Wrecking Yard.'
'Q. Did you get a good look at the man? A. I didn't get a good look, enough to identify him, while I was approximately 125, maybe 100 feet away from him.
'Q. Was anything or anybody with the man that...
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