Murphy v. Superior Court In and For City and County of San Francisco

• Decision Date: 12 January 1961
• Citation: 188 Cal.App.2d 185,10 Cal.Rptr. 176
• Parties: Shirley M. MURPHY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Civ. 19707.
• Court: California Court of Appeals Court of Appeals

Page 176

10 Cal.Rptr. 176

188 Cal.App.2d 185

Shirley M. MURPHY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Civ. 19707.

District Court of Appeal, First District, Division 2, California.

Jan. 12, 1961.

James T. Davis, San Francisco, for petitioner.

Thomas C. Lynch, Dist. Atty. City and County of San Francisco, John M. Dean, Asst. Dist. Atty., San Francisco, for respondent.

KAUFMAN, Presiding Justice.

Petitioner seeks to restrain the respondent court from proceeding to hear an alleged violation of Penal Code section 217 (assault with intent to commit murder) upon the grounds that no reasonable or probable cause existed to form a basis upon which to hold petitioner to answer. Petitioner's point is well taken.

On October 13, 1960, petitioner came regularly before the Municipal Court of the City and County of San Francisco, having been charged with violation of Penal Code section 217, assault with intent to commit murder. It was charged that she had committed the offense upon the person of her husband, Harry Murphy, on July 19, 1960.

Murphy testified that when he had been drinking, petitioner would hide his pistol. The practice occasioned several arguments.

On July 15, 1960, four days before that of the alleged offense, Murphy had asked petitioner's company at a baseball game. Upon discovering that Murphy's friends were to accompany them, petitioner declined the invitation with some acrimony. Murphy returned home that night to find the pistol missing from its usual resting place.

On the morning of July 19, 1960, Murphy testified he had seen his gun in the bathroom. That evening, he returned home from work and proceeded to take a shower. While he was showering, petitioner entered the bathroom and began to place the gun on a clothes hamper near the tub, saying 'Here is your damn gun if that is what the beef is.' Murphy testified that he stepped half out of the shower and 'grabbed ahold of it and gave it a yank and it went off' wounding him. Murphy further testified that his wife did not enter the bathroom pointing the gun at him and that his wife had never threatened to kill him. He testified that he believed his wife, petitioner, had been drinking that evening.

The above is a succinct resume of the sole eyewitness testimony before the lower court relating to the occurrence. The only other testimony adduced was that of two police officers who testified that petitioner had variously related to them her location about the premises at the time of the alleged crime and that she had disclaimed knowledge of the location of the gun.

Strangely, upon the above facts, a motion to dismiss was denied by the municipal court at arraignment and a motion to set aside the information was denied by the superior court. It is the latter denial that forms the basis for this petition. The petition must be granted.

'It is, of course, elementary that before a defendant may be held to answer to the Superior Court it must appear from the testimony at the preliminary examination that a public offense has been committed * * *' Hall v. Superior Court, 120 Cal.App.2d 844, 847, 262 P.2d 351, 352, and "* * * there is sufficient cause to believe the defendant guilty thereof.' Penal Code, sec. 872; In re Schuber * * *; In re Williams, 52 Cal.App. 566, 199 P. 347. * * *' People v. Schuber, 71 Cal.App.2d 773, 775, 163 P.2d 498, 499.

No reasonable conclusion can be drawn from the facts in evidence before the committing magistrate in this case that would support a conclusion that a public offense had been committed. The sole testifying witness to the occurrence, and the purported victim of the assault, stated unequivocally under both direct and cross-examination that as the petitioner was laying the gun on the clothes hamper, he grasped it 'and gave it a yank and it went off.' It is abundantly clear from his testimony that it was his action in...