In re Ross

17 Cal. App. 676

Opinion

THE COURT.

The writ must be denied for various reasons. First, the evidence had upon the preliminary examination is not authenticated in any manner. Second, while the aggressive acts of defendant were directed toward a third party, they were done in the presence of the officer and so terrorized him that he was prevented from discharging a duty and the effect of which was to resist such officer. As to the other offense of assault with a deadly weapon, it may be, if the case of People v. Sylva, 143 Cal. 62, [78 Pac. 814], is to be followed as a correct exposition of the law, that upon a final trial it might be held insufficient to warrant a conviction of the exact offense charged, although not of lesser offenses embraced therein. But upon a preliminary hearing, we regard the unauthenticated evidence presented as insufficient, even if authenticated, to warrant the writ.

Assuming that reasonable grounds are shown to warrant the magistrate in binding the petitioner over, the bail is n-ot excessive.

Writ denied.