People v. Swansboro

• Decision Date: 01 March 1962
• Docket Number: Cr. 7960
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth Wilbert SWANSBORO, Jr., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 527

19 Cal.Rptr. 527

200 Cal.App.2d 831

The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth Wilbert SWANSBORO, Jr., Defendant and Respondent.

Cr. 7960.

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

March 1, 1962.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood and Ralph F. Bagley, Deputy Dist. Attys., Los Angeles, for appellant.

Douglas H. Trowbridge, Redondo Beach, for respondent.

ASHBURN, Justice.

Defendant was charged in Count I of an information with violation of Penal Code § 217, assault with a deadly weapon with intent to commit murder, and in Count II thereof with violation of Penal Code § 245, assault with a deadly weapon.

On motion of defendant, Count I was dismissed, the People making no objection to this dismissal. Defendant's motion made pursuant to Penal Code § 995, was granted as to Count II and the People appeal from the order.

The evidence before the committing magistrate consists of the testimony of police Officers Willick and Ashe and People's Exhibit 1, a butcher knife. Officers Willick and Ashe, in response to a radio call regarding a disturbance, went in separate patrol cars to 3817 West 104th Street, Inglewood, arriving about 2:00 a. m. on July 15, 1961. On arrival they found Officer Donniker standing at the front door. Just inside the open door, but with the screen door locked, was the defendant. He had a large butcher-type knife in his left hand 'pointing to the lower left portion of his body just below the rib cage.' The knife had an eight-inch blade and a brown plastic handle. Defendant made statements to the effect that he was going to kill himself if the officers entered. He also stated that he had a revolver and a pistol in the house and that he was going to get these guns and come out shooting. The officers told him they had no intention of shooting him, that they just wanted him to put the knife down and talk to them. He said he had eight bullets in the gun and was going to come out shooting; he said he knew that if he killed an officer they would have to kill him. Officer Willick testified that 'At 2:25 a. m., we had been there approximately 25 minutes, he told us that in five minutes we had to make up our minds, because he was going to get a gun. And at 2:30, which was five minutes later, he left the front door.'

When defendant left the front door, the officer cut the screen but did not go in. Defendant heard the noise and came back, repeating the threat to kill himself if the officers entered. At this time defendant was 'just out of sight, just around the door.'

Officer Willick entered with Officer Ashe right behind. He saw defendant running through the kitchen into a hallway, from which he turned left into another hallway where Officer Willick found him attempting to enter a closet door. Defendant had told the officers several times at the front door that his guns were in the closet. Defendant had partially opened the closet door but Willick threw his body against the door and grabbed at defendant, who still had the knife in his hand, holding it in the same grip as when he was at the front door. He raised the knife and pointed it at Officer Willick; the blade was protruding from the palm of his hand and his hand was raised to about the height of the officer's head. The instant defendant raised the knife, the officer grabbed the blade with his hand; 'the sharp point was toward the palm of my hand. I grabbed it and held on.' As he did so, Officer Ashe reached over Officer Willick's shoulder and grabbed the knife higher up on the blade, near the handle. Defendant was subdued and handcuffed. A search of the closet disclosed a baseball bat, no guns.

Upon cross-examination, Officer Willick testified that defendant's threats against the officers were prior to their entry into the house, and as they entered his threats became very violent; that he was going to kill them because he knew if he killed one of the officers he would have to kill himself.

Officer Ashe testified that while the officers were outside the house, defendant kept making threats with the knife 'which was held in his left hand pointing toward his stomach, stating that he was going to kill himself if we entered the house. He stated that he and his wife had been having trouble and he didn't want to live. Other statements that he made were that he wanted to die, and he was going to get some guns that he had in the house, and he was going to come out shooting. He requested us all to line up so he could shoot us, and if we were any kind or any type of a man that we would shoot him in return.' The defendant asked Ashe if he was fast on the draw of a gun. 'And he said that he had a gun; that if I was any type of a man that we would go out into the driveway and we would draw the guns, and that he was faster than I was and that he would kill me.' Officer Ashe did not remember any threats being made while or after entering the house. As he followed Officer Willick into the house and into the hall he saw the defendant and Officer Willick 'in a close position.' At that time he saw a knife blade 'pointed toward Officer Willick's chest and the defendant started a motion downward. * * * And I grabbed for the knife and pulled it out. There was pressure on the knife indicating that there was a hand or hands on the knife. I pulled the knife out of this grip, and it fell to the floor.' Officer Willick's hand was nicked; Officer Ashe received many lacerations on his hand requiring medical attention.

Penal Code § 870 provides that a defendant shall be held to answer if 'it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof.' Robison v. Superior Court, 49 Cal.2d 186, 188, 316 P.2d 1, 2: 'The evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction. The 'sufficient cause' required by section 872 means merely that there is a reasonable or probable cause for believing that defendant is guilty of the crime charged. '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 accused's guilt. (People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344.)' Bompensiero v. Superior Court, 44 Cal.2d 178, 183-184, 281 P.2d 250, 254: 'An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]'

Respondent states that '[i]t is incumbent upon the Appellant to show that the Superior Court Judge could have entertained a strong suspicion that there had been an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another with the knife, (Sections 240 and 245 Penal Code).' It is contended that there was no probable cause for a finding of the elements required by Section 245 of the Penal Code. In this connection it is argued that all of the threats to kill the officers were made prior to their entry into the house, at which time there was a locked screen door between defendant and them; thus, 'at that time he lacked the present ability to commit violent injury on the person of the officers.' Also, under respondent's version of the evidence, subsequent to the officers' entry 'the respondent retreated down first one hallway and then down another hallway and then attempted to retreat further into a closet' and was there disarmed; that the asserted assault at this time 'was toward the person of himself and not upon the person of another within the meaning of Section 245 Penal Code.'

These contentions cannot be sustained. The rule defining the functions of the trial court when passing upon a motion under § 995 of the Penal Code is thus stated in People v. Shaffer, 182 Cal.App.2d 39, 42-43, 5 Cal.Rptr. 844, 846: 'On a motion to set aside an information, the court hearing such motion may not substitute its judgment as to the weight of the evidence for that of the magistrate conducting the preliminary hearing. [Citations.] Nor may the court judge the credibility of the witnesses who testified at the preliminary hearing. [Citations.] Under section 995 of the Penal Code, the information will be set aside only where there is no evidence that a crime has been committed, or there is no evidence to connect the defendant with a crime shown to have been committed. [Citati...