Opinion
O. W. Winthrop was committed on a charge of murder, and applies for writ of habeas corpus. Writ denied.
COUNSEL
W. H. Allen and C. W. Kyle, for petitioner.
John F. Dare, for the People.
OPINION
BEATTY, C. J.
The prisoner is in custody of the sheriff of San Francisco under an order holding him to answer on a charge of murder, and asks to be released upon the ground that he was committed without reasonable or probable cause. With his return to the writ of habeas corpus the sheriff has submitted a transcript of the evidence adduced at the examination of the prisoner before the committing magistrate, which I have carefully considered. The result is that, while I do not deem it very satisfactory or convincing, I still cannot say that it is legally insufficient to justify the order holding the prisoner to answer. To sustain such an order, it is not necessary that the evidence should be so convincing as to justify a verdict against the suspected party, but it is sufficient if it points to him, and induces a belief that he may have committed the offense charged. It is unnecessary, and would perhaps be improper, to review the evidence in detail; and I content myself with saying that while the conduct and bearing of the prisoner at and subsequent to the time when he was first seen in company with Mrs. Mathews at the cemetery have been those of an innocent and humane man, and while the evidence as to the insurance on her life in his favor, as trustee for her little daughter, is totally insufficient to show any motive for causing her death, there is yet some testimony which, if true, tends to prove that he gave her the strychnine which undoubtedly caused her death. Some of this testimony was perhaps incompetent, but it was admitted without objection, [5 Cal.Unrep. 57] and it is not clear that its competency might not have been shown if the objection had been made. On the whole, I feel obliged to remand the prisoner. So ordered.