In re Vandiveer

Petitioner was charged with the crime of seduction under promise to marry, alleged to have occurred January 1, 1906. At the preliminary examination he was committed, and sues out the writ on the ground that the justice of the peace acted without reasonable or probable or any cause in committing him to the custody of the sheriff. No question arises on the regularity of the proceedings. We deem it best not to comment upon the evidence to any considerable extent, as the cause may be tried on substantially the same testimony as is now before us.

The prosecuting witness testified that petitioner had sexual intercourse with her at the date alleged, coupled with a - promise on his part to marry her as a condition to her consent to such intercourse. Upon cross-examination she was interrogated as to the manner in which petitioner performed the act of intercourse. Her reply apparently placed the parties in such juxtaposition as to make the act physically impossible, if she clearly understood the question, and if we may infer that she meant her answer to be taken literally. It

Petitioner, at the argument, placed much reliance upon the case of Lowrey v. San Joaquin C. & I. Co., 134 Cal. 185 , [ 66 Pac. 225 ], That was a ease of damages from the overflow of water alleged to have been caused by defendant’s dam. The plaintiff had the verdict of the jury and judgment followed accordingly. On a review of the evidence the court reversed the judgment. The court said: “There is no direct evidence that defendant’s dam caused the overflow. It rests upon inference from known laws of physics, and from actual physical conditions shown to exist at the time the levee gave way. . . . All reasonable inferences may be indulged from proved facts, but no inference may be upheld which is contrary to reason, to physical laws, or the course of nature.”

This case is not controlling of the case here, for there was direct, evidence of intercourse, and the question is not alone whether the act could possibly have been performed in the manner described, but it is whether the magistrate had the right to accept part of the prosecuting witnesses’ testimony and disregard a part. It is only necessary to examine the evidence to ascertain whether the commitment is without reasonable or probable cause. Whether the evidence is sufficient to convict beyond a reasonable doubt, is the province of the jury to say, and ought not to be determined in advance on habeas corpus. (Ex parte Becker, 86 Cal. 402 , [ 25 Pac. 9 ].)

The office of the writ does not go to the extent of warranting this court in passing upon the credibility of witnesses where there is conflict in the testimony. The utmost power given us is to say whether or not there is some evidence which would reasonably justify the magistrate in finding that probable cause appeared that the offense was committed by the person charged. We are not permitted to speculate as to how a jury may regard the evidence. The committing magistrate has the same right to judge of the credibility of witnesses and of the truth or falsity of their testimony as a jury would have at the trial of the cause, but he is not bound by the rule of reasonable doubt.

The code rule of evidence invoked by petitioner does not require that the entire testimony of witness is to be distrusted, much less disbelieved, because he has testified falsely upon some material fact. (Ex parte Hicks, 53 Cal. 354 .) In this cas.e it was said: “The effect of this provision (Code Civ. Proc., sec. 2061, subd. 3) is, that if a witness is willfully false in one portion of his testimony ‘he is to be distrusted in others’; and not that his whole testimony is to be absolutely rejected.” Without suggesting possible circumstances, which may have appeared at the hearing before the justice of the peace, leading him to believe the direct testimony of the prosecuting witness, it is enough for us to know that the testimony was given and that, presumably, it was believed, although the testimony on cross-examination may have been rejected.

It is further insisted that there is not sufficient evidence of previous chaste character. Section 268 of the Penal Code, under which the petitioner was committed, provides: “Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character is punishable,” etc.

The father of the prosecuting witness testified that his daughter had lived with him during her whole life.

“Q. Do you know what her reputation is as to being chaste and virtuous, that is, about and prior to January 1, 1906?”

“The Witness: Yes, sir.

“Q. What is her reputation as to being chaste and virtuous? A. Good.”

‘1 Cross-examination.

“Q. Who have you ever heard discuss it, Mr. Christian? A. Well, I never seen anything wrong with her.

“Q. You never heard anybody discuss that? A. No, sir, I never heard anything or seen anything.

“Q. That is what you mean by your answer, it is simply that you yourself never observed anything to indicate that she was not chaste ? A. In my own judgment; yes, sir.

“Q. That is your judgment in the matter? A. Yes, sir.”

The statute uses the language “previous chaste character” and the question is suggested that proof of reputation is not necessarily proof of character. It is true that reputation is not character itself, but it may be evidence of character.

Mr. Anderson, in his Law Dictionary, gives this definition of the term character: “The qualities impressed by nature or habit on a person, which distinguish him from other persons. These constitute his real character; while the qualities he is supposed to possess constitute his estimated character or reputation.” We do not think that the statute requires proof of the true character of the person, for that would in most cases be impossible. The best we can do is to judge the character of our neighbors by the estimation in which they are held in the community. Good general reputation for honesty, chastity, veracity and like qualities is synonymous with good character as to these qualities, within the meaning of the statute.

The writ is discharged and the prisoner remanded.

Buckles, J., and McLaughlin, J., concurred.