From the petition filed herein it appears that by complaint filed in a justice court of Jerome county petitioner was charged as follows: "that the petitioner knowingly, wrongfully, unlawfully, wilfully and maliciously committed a misdemeanor by then and there selling to one Harry Beetham, for beverage purposes, one bottle of Budweiser Brew and one bottle of Becker's Becco, said bottles containing what is commonly known as near beer and being a malt liquor and as a matter of law deemed intoxicating. . . . ." that a warrant was issued and petitioner was arrested; that a preliminary examination was held, during which it was admitted that the bottles admitted in evidence contained a malt liquor. It appears that upon cross-examination of the only witness testifying, the following took place:
"Q. Mr. Davis, do you know whether or not the liquor in these bottles is intoxicating?
"Henry M Hall: We object, your Honor, for the reason heretofore set out, that in the decision of the Supreme Court as already cited, that being the case of State vs. Lockman, it is not necessary to prove that the exhibits in question contain alcohol in any capacity (quantity) nor that it will produce intoxication. *Page 305
"The Court: The objection is sustained."
Whereupon, counsel for petitioner moved to discharge the defendant for the reason that the prosecution had failed to prove that any crime or the crime charged had been committed, or that there was probable cause to believe the defendant guilty thereof, which motion was overruled. The court thereupon held petitioner to answer in the district court, the order of commitment being indorsed upon the depositions.
The grounds upon which petitioner seeks to be discharged from custody by this writ are that he was committed on said criminal charge without reasonable and probable cause, in that it was not shown that the liquor alleged to have been sold by him was capable, when used as a beverage, of producing intoxication, and that the decision of this court in re Lockman, 18 Idaho 465,110 P. 253, 46 L.R.A., N.S., 759, upon which the committing magistrate based his ruling in refusing to permit evidence of the intoxicating qualities of said liquor, is an erroneous, strained and improper construction of I. C. A., sec.18-102. With respect to commitment after preliminary examination, this court has announced the rule that it cannot weigh the evidence on habeas corpus, but if it wholly fails to disclose a public offense for which a prisoner may be held on preliminary examination, then the petitioner would be entitled to his discharge (In re Heigho, 18 Idaho 566, 110 P. 1029, Ann. Cas. 1912A, 138, 32 L.R.A., N.S., 877; In re Knudtson,10 Idaho 676, 79 P. 641), and that the court may inquire into and examine the proofs submitted at a preliminary hearing to see whether or not, first, there is any evidence tending to show that a public offense has been committed; second, there was cause to believe the accused committed it. (In re Baugh,30 Idaho 387, 164 P. 529.) In the cases cited, the question was not raised as to whether habeas corpus was the proper remedy, as here. Here it was admitted that the beverage sold was a malt liquor and it was proven that defendant sold it. Under the decision in re Lockman, supra, the admission that it was a malt liquor established as "intoxicating liquor" as *Page 306 a matter of law, the sale of which is forbidden by I. C. A., sec. 18-201, with which crime petitioner was charged. The evidence was therefore sufficient to justify the committing magistrate in holding the petitioner to the district court. The committing magistrate could not rule otherwise than he did upon the objection to the evidence complained of, inasmuch as all courts of intermediate jurisdiction are controlled and bound by the decisions of courts of ultimate resort. (State v. Moore,36 Idaho 565, 112 P. 349; Sala v. Crane, 38 Idaho 402, 412,221 P. 556.)
Furthermore, this court cannot on habeas corpus convert itself into an appellate court for the examination of questions reviewable on appeal. (In re Davis, 23 Idaho 473, 130 P. 786;In re Knudtson, supra.) The correctness of the court's ruling in the admission or exclusion of evidence cannot be reviewed onhabeas corpus. (29 C. J. 47, sec. 38; Ex parte Kawaguchi,12 Cal. App. 498, 107 P. 727; Ex parte Dixon, 43 Nev. 196,183 P. 642; Ex parte Kaster, 52 Cal. App. 454, 198 P. 1029;State ex rel. Swift v. Dillon, 75 Fla. 785, 79 So. 29; Peoplev. Siman, 284 Ill. 28, 119 N.E. 940, 942; State ex rel.Nordstrum v. Superintendent of Workhouse, 146 Minn. 140,178 N.W. 610; Charlton v. Kelly, 229 U.S. 447, 33 Sup. Ct. 945,57 L. ed. 1274, 46 L.R.A., N.S., 397; Ex parte Selicow,100 Neb. 615, 160 N.W. 991.)
For the foregoing reasons I concur in the conclusion reached in the majority opinion that the writ should be quashed and petitioner remanded to custody.