People v. Maggiora

• Decision Date: 31 August 1962
• Docket Number: Cr. A
• Citation: 207 Cal.App.2d Supp. 908,24 Cal.Rptr. 630
• Court: California Superior Court
• Parties: 207 Cal.App.2d Supp. 908 PEOPLE of the State of California, Plaintiff and Appellant, v. Irene Ariadne MAGGIORA, Defendant and Respondent. 5111. Appellate Department, Superior Court, Los Angeles County, California

Page 630

24 Cal.Rptr. 630

207 Cal.App.2d Supp. 908

PEOPLE of the State of California, Plaintiff and Appellant, v. Irene Ariadne MAGGIORA, Defendant and Respondent.

Cr. A 5111.

Appellate Department, Superior Court, Los Angeles County, California.

Aug. 31, 1962.

William B. McKesson, Dist. Atty., Harry Wood, Deputy Dist. Atty., for appellant.

Kenneth Foley, San Francisco, for respondent.

Before SWAIN, P. J., and SMITH, J.

BY THE COURT.

This is an appeal by the People. There is no dispute regarding the facts. The trial court dismissed the complaint for the sole reason that the complaint was not signed and filed by the arresting officer but by the assistant chief of police of South Gate.

The complaint charged a violation of sec. 23102(a) V. C. (driving while under the influence of intoxicating liquor). Sec. 40302 V. C. provides that for this offense the defendant shall be taken before a magistrate and sec. 40306(a) V. C. provides: 'Whenever a person is arrested for a misdemeanor and is taken before a magistrate, the arresting officer shall file with the magistrate a complaint * * *.' Because of this section, and the failure of the arresting officer to sign the complaint, the trial judge dismissed the complaint.

This was error for several reasons.

First: In this case a magistrate (the arrest having been made about 2:35 A.M.) was not available but, pursuant to sec. 40307, V. C., the defendant was released on bail. Thus literally sec. 40306 V. C., relied on by defendant-respondent, was inapplicable since it applies only when defendant is taken before a magistrate. While this is a technical answer, so is the claim asserted by defendant-respondent.

Second: V.C. sec. 40306 requires the arresting officer to file the complaint but does not require him to sign it. The obvious purpose of the section is to place upon the arresting officer the primary responsibility to see that a complaint is filed. Compare People v. Biffle (1950) our Cr.A. 2596 where a somewhat comparable provision in H. & S. Code sec. 26604 was construed not as an exclusive mode but 'to impose on someone in authority the burden of attending to such criminal actions, or prosecutions.' We hold that the arresting officer may file the complaint personally or he may activate the machinery which causes the complaint to be filed. It is an old maxim of jurisprudence that 'Qui facit per alium facit per se.' In either case the purpose of the section has been accomplished when the complaint is filed. In the case at bar the complaint was filed the day of the defendant's arrest and it complies with Pen.C. sec. 740 as to its contents.

Third: However, assuming, without deciding, that the arresting officer was wrong in not signing or filing a complaint, it does not follow that the complaint should be dismissed. The section is not a constitutional requirement nor is it substantive, but only statutory and procedural. There has been no showing of prejudice. The same legislative body that created the requirement may, and has, stated the consequences of failing to follow it. Sec. 960 P.C. provides that 'no accusatory pleading is insufficient' because of a defect in form absent 'prejudice'. The Legislature has also told appellate courts in sec. 1258 P.C. that we must disregard 'technical errors or defects'. The principle announced in People v. Washington (1962) 204 A.C.A. 234, 22 Cal.Rptr. 185, applies here. At p. 237 of 204 A.C.A., at p. 187 of 22 Cal.Rptr. the court said: ...