In the Matter of the Application of CHARLES E. ROSS, for Writ of Habeas Corpus

[Crim. No. 231. Second Appellate District. December 18, 1911.] In the Matter of the Application of CHARLES E. ROSS, for Writ of Habeas Corpus. Criminal Law—Preliminary Examination—Resistance op Oppicer— Assault With Deadly Weapon — Evidence TTnauthenticated— Suppiciency—Habeas Corpus.—A writ of habeas corpus cannot be allowed for the discharge of a prisoner held to answer upon a preliminary examination for the offenses of resisting a public officer, and of an assault with a deadly weapon, where the evidence is not authenticated, but, if authenticated, is sufficient to show that, though the aggressive act of the defendant were directed toward a third party, they so terrorized the police officer that he was prevented from discharging his duty, and had the effect to resist the officer, and, though insufficient to show an assault with a deadly weapon, is sufficient to sustain a conviction of lesser offenses included therein, and where the bail allowed is not excessive. PETITION for writ of habeas corpus. The facts are stated in the opinion of the court. Conkling & Brown, for Petitioner. [MAJORITY — THE COURT.] 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.