Walker

Following denial of his motion to set aside an information charging him with the murder of Gary Charles Watson, petitioner seeks prohibition (or mandamus) enjoining prosecution on said charge. For the reasons which follow we have concluded that the requested relief should be granted and that proceedings be resumed against petitioner solely on the charge of manslaughter (Pen. Code, § 192) as reflected in the magistrate’s order of commitment.

The evidence before the magistrate consisted of stipulated testimony of the cause of death (a gunshot wound to the head) and petitioner’s tape-recorded statement. The statement reveals in pertinent part that petitioner, owner of an East Oakland liquor store, had known the victim for several years as a trouble maker involved in alcohol and drug abuse. On the night of the shooting, petitioner was counting his weekend receipts, his hand gun laying alongside, when the victim entered the store and an argument soon erupted. As the victim left, he made an explicit threat to kill petitioner. Shortly thereafter, an undescribed object was hurled through the store front plate glass window followed by the victim’s return into the store where he…