
    [S. F. No. 4859.
    In Bank.
    November 13, 1907.]
    W. I. BROBECK, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents.
    
    Prohibition Does not Lie Restraining Triad under Indictment Returned without Evidence.—Prohibition will not lie to restrain the superior court from proceeding with the trial of the petitioner upon an indictment found by a grand jury on the ground that there was absolutely no evidence produced before the grand jury tending to show him to be guilty of any public offense.
    APPLICATION for a Writ of Prohibition directed to the Superior Court of the City and County of San Francisco. Prank H. Dunne, Judge.
    The facts are stated in the opinion of the court.
    Frank D. Nicol, and A. F. Morrison, for Petitioner.
    W. H. Langdon, District Attorney, Wm. Hoff Cook, Assistant District Attorney, and Charles W. Cobb, for Respondents.
    
      
       The indictment referred to in this opinion was subsequently dismissed by the superior court of the city and county of San Francisco upon motion of the district attorney on the ground “that there is no evidence sufficient to put said W. I. Brobeek on Ms defense to said charge,” and “that in the interest and furtherance of justice the said indictment as to said W. I. Brobeek should be dismissed and he discharged.”—The Court.
    
   THE COURT.

This is an-application for a writ of prohibition to restrain the superior court from proceeding with the trial of petitioner upon an indictment found by a grand jury. In addition to the point made in Halsey v. Superior Court, ante, p. 71, [91 Pac. 987], petitioner claims that there was absolutely no evidence produced before the grand jury tending to show him to be guilty of any public offense. His contention is that an indictment found and presented without any evidence to warrant it is a nullity, and that the superior court is without jurisdiction to proceed thereon. It is, however, settled that an indictment may not be assailed on this ground. This question was fully considered in In re Kennedy, 144 Cal. 634, [103 Am. St. Rep. 117, 78 Pac. 34], The court there said, speaking through Mr. Justice McFarland; “An indictment is a record of the action of a judicial body, and such action is final when there is no appeal therefrom and no other method provided for reversing it; and there is no method for revising it on the ground that there was not sufficient evidence to support it.” That was a proceeding in habeas corpus, but there is no distinction material here between habeas corpus and prohibition. We are satisfied that the Kennedy case correctly states the law upon this matter, and that the rule there declared is applicable here. It follows that, so far as this proceeding is concerned, it is immaterial that there may have been no evidence introduced before the grand jury tending to show petitioner guilty of a public offense.

The application must be denied and it is so ordered.  