In Re Schuber

California Court of Appeal

In Re Schuber

156 P.2d 944, 68 Cal. App. 2d 424, 1945 Cal. App. LEXIS 779

CourtCalifornia Court of Appeal

DecidedMarch 15, 1945

DocketCrim. 1908

StatusPublished

Cited by12 cases

This text of 156 P.2d 944 (In Re Schuber) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Schuber, 156 P.2d 944, 68 Cal. App. 2d 424, 1945 Cal. App. LEXIS 779 (Cal. Ct. App. 1945).

Pincite

Opinion

PEEK, J.

Petitioner herein charges that his confinement is illegal in that he has been held to answer the charge of violation of section 288 of the Penal Code without probable cause for the reason that no violation of said section was shown to have been committed.

Attached to his petition is a complete transcript of the proceedings before the committing magistrate. From said transcript it appears that the only evidence introduced tending to prove that a crime had been committed or to connect defendant with the crime charged, other than the extrajudicial statement of defendant which was reduced to writing but which was neither signed nor sworn to by him, was the testimony of a doctor who examined the young girl involved and who testified merely that “there was a slight tear at the posterior part of the genital”; that he took a smear but that no spermatozoa was disclosed. In other words the transcript discloses no evidence whatever, independent of defendant’s admission, as to the cause of the injury.

Obviously, such testimony is not sufficient under section 872 of the Penal Code to hold the defendant to answer in the superior court. In no way does it appear from such testimony that “a public offense has been committed,” and without some showing in that regard it cannot be said that there was “sufficient cause to believe the defendant guilty thereof” for no crime has been proved. (Pen. Code, § 872; In re Martinez, 36 Cal.App.2d 687 [98 P.2d 528].)

As stated in the case of People v. Simonsen, 107 Cal. 345 [40 P. 440] : “It is elementary that the corpus delicti must be established before extrajudicial statements and admissions of a defendant are admissible in evidence, and can be considered as tending to establish the fact to which they relate.” That such is the overwhelming weight of authority in this country must be conceded. (In re Kelly, 28 Nev. 491 [83 P. 223].)

While it is true that preliminary examinations of persons accused of crime when held before a committing magistrate are usually less formal in matters of procedure than would be required upon the trial of the cause the essential principles of procedure and of evidence may not be departed *426 from by committing magistrates in the conduct of such examinations (I n re Williams, 52 Cal.App. 566 [199 P. 347]), and although the committing magistrate may hold a defendant to answer upon evidence which would not support a verdict of guilty, nevertheless there must be some evidence tending to show the commission of the crime charged before a defendant’s admission or confession can be introduced for any purpose. (People v. Kaye, 43 Cal.App.2d 802 [111 P.2d 679].)

The cases relied upon by respondent are not in point, for, as previously stated, no evidence whatsoever other than the extrajudicial statement of the defendant was produced tending to show that any crime had been committed.

It is our conclusion that petitioner, having been committed on a criminal charge without reasonable or proper cause, should be discharged, and it is so ordered.

Adams, P. J., and Thompson, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

PEEK, J.

Petitioner herein charges that his confinement is illegal in that he has been held to answer the charge of violation of section 288 of the Penal Code without probable cause for the reason that no violation of said section was shown to have been committed.

Attached to his petition is a complete transcript of the proceedings before the committing magistrate. From said transcript it appears that the only evidence introduced tending to prove that a crime had been committed or to connect defendant with the crime charged, other than the extrajudicial statement of defendant which was reduced to writing but which was neither signed nor sworn to by him, was the testimony of a doctor who examined the young girl involved and who testified merely that “there was a slight tear at the posterior part of the genital”; that he took a smear but that no spermatozoa was disclosed. In other words the transcript discloses no evidence whatever, independent of defendant’s admission, as to the cause of the injury.

Obviously, such testimony is not sufficient under section 872 of the Penal Code to hold the defendant to answer in the superior court. In no way does it appear from such testimony that “a public offense has been committed,” and without some showing in that regard it cannot be said that there was “sufficient cause to believe the defendant guilty thereof” for no crime has been proved. (Pen. Code, § 872; In re Martinez, 36 Cal.App.2d 687 [98 P.2d 528].)

As stated in the case of People v. Simonsen, 107 Cal. 345 [40 P. 440] : “It is elementary that the corpus delicti must be established before extrajudicial statements and admissions of a defendant are admissible in evidence, and can be considered as tending to establish the fact to which they relate.” That such is the overwhelming weight of authority in this country must be conceded. (In re Kelly, 28 Nev. 491 [83 P. 223].)

While it is true that preliminary examinations of persons accused of crime when held before a committing magistrate are usually less formal in matters of procedure than would be required upon the trial of the cause the essential principles of procedure and of evidence may not be departed *426 from by committing magistrates in the conduct of such examinations (I n re Williams, 52 Cal.App. 566 [199 P. 347]), and although the committing magistrate may hold a defendant to answer upon evidence which would not support a verdict of guilty, nevertheless there must be some evidence tending to show the commission of the crime charged before a defendant’s admission or confession can be introduced for any purpose. (People v. Kaye, 43 Cal.App.2d 802 [111 P.2d 679].)

The cases relied upon by respondent are not in point, for, as previously stated, no evidence whatsoever other than the extrajudicial statement of the defendant was produced tending to show that any crime had been committed.

It is our conclusion that petitioner, having been committed on a criminal charge without reasonable or proper cause, should be discharged, and it is so ordered.

Adams, P. J., and Thompson, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

156 P.2d 944, 68 Cal. App. 2d 424, 1945 Cal. App. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-schuber-calctapp-1945.

Opinion

Related

Cite This Page — Counsel Stack