Weber v. Superior Court

EDMONDS, J.

Jerome Weber, together with Harry M. Lorenson and 11 others, was indicted for conspiracy to commit assault with a deadly weapon, robbery, and to pervert or obstruct justice or the due administration of the laws, all in violation of section 182 of the Penal Code. His application for a writ of prohibition to restrain the superior court from proceeding with the trial of the action presents the same questions as those decided in Lorenson v. Superior Court, ante, p. 49 [216 P.2d 859].

The facts are fully stated in the opinion in the Loren-son ease. From them it may be inferred that Weber’s activities were related to and in furtherance of a general conspiracy to pervert and obstruct justice to which Weber, Lorenson and other police officers were a party. Weber’s request of Officer Barkley to delay booking of any suspects in connection with a disturbance at Pearson’s place of business, and the fact that this request was made almost simultaneously with the attack upon Pearson, reasonably support that conclusion. In considering overt acts of Weber in connection with the entire series of events shown by the record, the grand jury was fully justified in concluding that these occurrences were a part of a common scheme or plan to which Weber was a party.

It cannot be said that such a conclusion is unreasonable or arbitrary. Under the test applied in the Greenberg case, “. . . there is some rational ground for assuming that petitioner is guilty.” (Greenberg v. Superior Court, 19 Cal.2d 319 [121 P.2d 713].) Perhaps, when the conduct of Weber is explained to a trier of fact, he will not be convicted, but the question of his guilt or innocence is not now before this court. The present issue does not concern the quantum of evidence necessary to sustain a judgment of conviction but only the question as to whether the grand jurors, acting as men of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which Weber participated.

As stated in Lorenson v. Superior Court, it cannot be said that the indictment is such an obvious and flagrant disregard of the fundamental rights of the petitioner that the expense, effort and delay of a trial would be an unfair burden upon him. (Rescue Army v. Municipal Court, 28 Cal.2d 460, 466 [171 P.2d 8].) The circumstances shown by the evidence before the grand jury allow the inference that, either there was a broad plan of which the actions of Weber were a part, or that his activities are unrelated to those of Lorenson, Swan, Cohen, Mold, Wolfe, and the seven Cohen associates. “ ‘Without explanation or contradiction of those facts by the defendant, and which the grand jury had a right to disbelieve, the jurors had the discretion to determine, “in their judgment” whether the evidence would “warrant a conviction by a trial jury.” In that event . . . the jury “ought to find an indictment,” as it did. We may not interfere with that discretion of the grand jury, or weigh the evidence adduced to determine its sufficiency.’ (McFarland v. Superior Court, 88 Cal.App.2d 153, 158 [198 P.2d 318].)” (Lorenson v. Superior Court, ante, p. 49.)

The petition for the peremptory writ of prohibition is denied, and the alternative writ is discharged.

Shenk, J., Schauer, J., and Spence, J., concurred.