205 P. 101 | Cal. | 1922
After a preliminary examination upon a complaint charging the petitioner with the crime of embezzlement he was held to answer therefor and committed to the custody of the sheriff. He seeks release on habeas carpus on the ground that the order holding him to answer was made without reasonable or probable cause.
The evidence taken on the preliminary examination is set forth in the petition. It shows that the petitioner obtained from the complaining witness the sum of six hundred dollars upon representations made by him to said witness that he, the petitioner, had formed a partnership to carry on a certain business and that for that sum of money he would *349
admit the witness as a member of said firm. Apparently the witness delivered to him the money with the intent that it should be applied to that purpose and to pass the title thereto to the firm of which the witness was to become a member. The evidence also tends strongly to show that the representations were wholly false, that no such firm had been formed or was in existence, and that the petitioner, having received the money as above stated, converted it to his own use. It is extremely doubtful if this establishes the petitioner's guilt of the crime of embezzlement. Perhaps an argument could be framed, based on similar reasoning to that upon which the crime of larceny by trick and device is upheld, which would lead to the conclusion that the petitioner had obtained possession of the money by fraud, and that the title thereto had not passed, notwithstanding the intent of the witness that it should pass. But we are not disposed on this hearing to enter upon this inquiry. We have no cases in this state which would be a precedent for holding that this would constitute embezzlement, or at all events, none of which we are advised. The evidence shows probable cause to believe that the petitioner is guilty of either one or the other of three distinct crimes: (1) Larceny by trick and device, under the reasoning above stated; (2) embezzlement of money obtained by trick and device, under the same reasoning, or (3) obtaining money by false pretenses. [1] Assuming, therefore, that the complaint charging embezzlement is not sustained, it is clear that there was ample cause for holding the petitioner for the commission of a crime. It would therefore be improper for this court to discharge him until the proper authorities have had an opportunity to make the correct charge. The language of the late Chief Justice Beatty in Ex parte Nicholas,
[2] It is never the duty of the court to discharge a petitioner on habeas corpus where it appears, notwithstanding the defects in the form of the charge against him, that he is probably guilty of a criminal offense. (Ex parte Branigan,
Let the petitioner be remanded to the custody of the sheriff.
Lawlor, J., Wilbur, L, Sloane, J., Richards, J., pro tem., Shurtleff, J., and Waste, J., concurred.