Polos v. Superior Court In and For City and County of San Francisco, 18939

• Decision Date: 12 November 1959
• Docket Number: No. 18939,18939
• Citation: 345 P.2d 981,175 Cal.App.2d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Michael H. POLOS, Petitioner, v. SUPERIOR COURT of State of California, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Page 981

345 P.2d 981

175 Cal.App.2d 210

Michael H. POLOS, Petitioner, v. SUPERIOR COURT of State of California, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

No. 18939.

District Court of Appeal, First District, Division 1, California.

Nov. 12, 1959.

John R. Golden, San Francisco, for petitioner.

Stanley Mosk, Atty Gen., Peter T. Kendedy, Dep. Atty. Gen., for respondent.

FOLEY, Justice pro tem.

Petitioner was accused by information of the crime of burglary. He moved to set aside the information upon the ground that he had been committed without reasonable or probable cause. This motion was denied. He now seeks a writ of prohibition to restrain the respondent court from taking any further proceedings in the matter.

An information must be set aside if the defendant has been committed without reasonable or probable cause. Pen.Code, § 995; People v. Jablon, 153 Cal.App.2d 456, 458, 314 P.2d 824. In such a case the trial court should grant a motion to set aside the information, and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. Priestly v. Superior Court, 50 Cal.2d 812, 815, 330 P.2d 39.

"Sufficient cause' and 'reasonable or probable cause' mean 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 * * *.' Rogers v. Superior Court, 46 Cal.2d 3, 7-8, 291 P.2d 929, 932.

In People v. Platt, 124 Cal.App.2d 123, 131, 268 P.2d 529, 534, the court stated, 'On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated. Weber v. Superior Court, 35 Cal.2d 68, 69, 216 P.2d 871. A court may not substitute its judgment as to the weight of the evidence for that of the magistrate. If there is some evidence to support the information, the court will not inquire into its sufficiency. 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. Lorenson v. Superior Court, 35 Cal.2d 49, 55-57, 216 P.2d 859.'

In the instant case there is ample evidence that the crime of burglary had been committed but there is no evidence to connect the petitioner with that crime as the following reme of the record demonstrates.

Sometime between 5:30 p. m. of March 4, 1958, and 8:00 a. m. of the following morning, the warehouse of the Dalziel Plumbing Supplies Company in San Francisco was broken into and certain power tools were stolen.

Petitioner is the owner of a restaurant. On the evening of April 4, 1958, a month after the burglary, Nicholas Russo, a carpenter, and his wife, patrons of and previously known to petitioner, visited petitioner's restaurant. Petitioner offered to sell to Russo two power tools, an electric drill for $15 and a saw for $50. Believing this to be a good deal, Russo agreed to buy the tools, paying for them in installments. Upon departing, Russo took the tools with him and placed them in his car. On this occasion petitioner stated: 'You know, you can't use the guarantee on these.' According to Russo, petitioner had never concealed the tools. Russo knew that the drill and saw were not new since he had seen the petitioner using them to repair a door. Russo...