Rogers v. Superior Court of Alameda County

Citation291 P.2d 929,46 Cal.2d 3
CourtUnited States State Supreme Court (California)
Decision Date29 December 1955
PartiesJohn ROGERS, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, State of California, Respondent. S. F. 19347.

William H. Coburn, Jr., Albany, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., and J. F. Coakley, Dist. Atty., Oakland, for respondent.

TRAYNOR, Justice.

Petitioner and L. C. Elliot were charged in one count of an information with posing as kidnappers for the purpose of extorting money, Penal Code, § 210, and, in another count with attempted extortion. Penal Code, § 524. Petitioner's motion under section 995 of the Penal Code to set aside the information on the ground that there is no reasonable or probable cause to believe that he committed the offenses charged was denied, and he now seeks prohibition to prevent further proceedings against him. (See Penal Code, § 999a.) The District Court of Appeal issued the alternative writ, and the cause was thereafter transferred to this court.

On April 28, 1955, the fourteen-year-old daughter of Dr. Charles S. Bryan, Jr. disappeared. Late in the evening of April 28th of 29th, Dr. Bryan received a telephone call, and an unknown voice advised him that if he delivered $5,000 at a specified location his daughter would be released. When he asked for proof that the caller had his daughter another voice replied, 'I ain't got no proof, it is just a chance you will have to take, bring it to Eighth and Market and she will be turned loose.' The second voice also stated that 'If there is any slip-ups it will be your daughter's life, not mine.' In addition to the foregoing evidence, admissions made to the police by the defendants following their arrest were introduced at the preliminary hearing. Petitioner was arrested on May 17, 1955, and was not taken before a magistrate and arraigned until May 25, 1955. It was during this period, on May 21st, that he made the admissions to the arresting officer that connect him with the crime.

Petitioner contends that his commitment was based entirely on incompetent evidence and that the peremptory writ should therefore issue. He claims that without his admissions there was no evidence to connect him with the crime and that his admissions were inadmissible on the grounds that there was no competent proof of the corpus delicti and that they come within the exclusionary rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, since they were made during the period of his illegal detention in violation of section 825 of the Penal Code.

The Attorney General contends that the writ of prohibition cannot be used to review the rulings on the admissibility of evidence received by the magistrate at the preliminary examination, that to construe sections 995 1 and 999a 2 of the Penal Code as providing for a full scale review of the rulings would be contrary to the purpose of the preliminary examination, and that the scope of review is simply to determine whether the magistrate has held the defendant to answer without reasonable or probable cause to believe a public offense has been committed with which the defendant is connected, and not whether the magistrate erred on questions of admissibility of evidence. We agree with this contention with this qualification: A defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence, and for the following reasons the peremptory writ will issue to prohibit further proceedings against him.

A court has no jurisdiction to proceed with the trial of an offense without a valid indictment or information. Greenberg v. Superior Court, 19 Cal.2d 319, 321, 121 P.2d 713; Cal.Const. art. I, § 8; Pen.Code, § 682. Prohibition is the proper remedy to prevent threatened action in excess of jurisdiction, Harden v. Superior Court, 44 Cal.2d 630, 637, 284 P.2d 9; Rescue Army v. Municipal Court of City of Los Angeles, 28 Cal.2d 460, 463, 171 P.2d 8, and it is an appropriate means to test the right of the People to proceed with a prosecution when the validity of an indictment or information is challenged on the ground that the defendant has been indicted or committed without reasonable or probable cause. Greenberg v Superior Court, supra, 19 Cal.2d 319, 323, 121 P.2d 713; Whitlock v. Superior Court, 97 Cal.App.2d 26, 30, 217 P.2d 158; Jackson v. Superior Court, 98 Cal.App.2d 183, 189, 219 P.2d 879; Hall v. Superior Court, 120 Cal.App.2d 844, 850, 262 P.2d 351; Pen.Code, §§ 995, 999a.

Section 871 of the Penal Code provides: 'If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, * * *.' (Italics added.) 'Sufficient cause' and 'reasonable or probable cause' mean such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused, People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344, but, '(t)he proof which will authorize a magistrate in holding an accused person for trial must consist of legal, competent evidence. No other type of evidence may be considered by the magistrate. The rules of evidence require the 'production of legal evidence' and the exclusion of 'whatever is not legal.' Sec. 1825, Code Civ.Proc.; * * *.' People v. Schuber, 71 Cal.App.2d 773, 775, 163 P.2d 498, 499. An information that is based entirely on hearsay or incompetent evidence is unauthorized, In re Flodstrom, Cal.App., 277 P.2d 101 (Hearing Granted, see 288 P.2d 859); Hall v. Superior Court, 120 Cal.App.2d 844, 850, 262 P.2d 351; Dong Haw v. Superior Court, 81 Cal.App.2d 153, 159, 183 P.2d 724; People v. Schuber, supra, 71 Cal.App.2d 773, 777, 163 P.2d 498; In re Schuber, 68 Cal.App.2d 424, 425, 156 P.2d 944; In re Martinez, 36 Cal.App.2d 687, 689, 98 P.2d 528; see also, People v. Proctor, 108 Cal.App.2d 739, 742, 239 P.2d 697; 7 Cal.Jur., Criminal Law, § 120, p. 984. Accordingly, when prohibition is sought under section 999a of the Penal Code, the writ will issue if no competent evidence was offered at the preliminary examination to support a reasonable belief that the offense charged was committed and that the defendant committed it.

Petitioner bases his contention that there was no competent proof of the corpus delicti and that therefore his admissions were not admissible against him, on the ground that since Dr. Bryan was unable to identify the voices he heard over the telephone, his testimony concerning the call is inadmissible hearsay. The testimony, however, to the effect that unknown persons posed as being able to obtain the release of Dr. Bryan's daughter for ransom, was offered merely to show that the conversation was held, and not to prove the truth of the statements made by the unidentified callers. Such evidence is not hearsay. People v. Kelley, 22 Cal.2d 169, 176, 137 P.2d 1; People v. MacArthur, 125 Cal.App.2d 212, 219, 270 P.2d 37; People v. Henry, 86 Cal.App.2d 785, 789, 195 P.2d 478; People v. Klein, 71 Cal.App.2d 588, 592, 163 P.2d 71; People v. Radley, 68 Cal.App.2d 607, 609, 157 P.2d 426; People v. Gaertner, 43 Cal.App.2d 388, 395, 110 P.2d 1002. The testimony was not only competent, but it covered each of the essential elements of the crimes charged and supports a reasonable belief that these offenses were committed. We thus reach petitioner's basic contention that his admissions were inadmissible under People v. Cahan, supra, 44 Cal.2d 434, 282 P.2d 905.

There can be no doubt that the admissions were made during a period of illegal detention. The arresting officer testified that he arrested defendant on the afternoon of May 17th. The conversation was held at about 10:15 a. m. on May 21st, or approximately ninety hours after the arrest. Even then defendant was not taken before the magistrate until May 25th, eight days after his arrest. Section 825 of the Penal Code provides:

'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; * * *.'

There is nothing to indicate that a magistrate was unavailable on the Tuesday afternoon of the arrest or at sometime within the forty-eight-hour period following it. Detention beyond the forty-eight-hour statutory maximum without being taken before a magistrate is unquestionably illegal. 3

In this State the admissibility of voluntary admissions or confessions made during illegal detention was first questioned in People v. Devine, 46 Cal. 45, 48. The contention that voluntary conversations with the police officer illegally detaining defendant were inadmissible, solely by reason of the illegal detention, was rejected as unfounded in principle or authority. Since that time, however, the federal courts have adopted the rule that a confession during a period of illegal detention is inadmissible. Mc Nabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, rehearing denied 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727; Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100; "(A) confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological." ' United States v. Leviton, 2 Cir., 193 F.2d 848, 853, but, '(T)he rule of the Mc Nabb case, * * * is not a limitation imposed by the Due Process Clause. (Citations.) Compliance with the Mc Nabb rule is required in federal courts by (the Supreme Court) through its power of supervision over the procedure and practices of federal courts in the trial of criminal cases.' Gallegos v. State of Nebraska, 342 U.S. 55, 63, 64, 72 S.Ct. 141, 146, 96 L.Ed. 86. A...

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  • People v. Pettingill, Cr. 20077
    • United States
    • United States State Supreme Court (California)
    • 9 Mayo 1978
    ...confession obtained during an illegal detention is ipso facto inadmissible, has not been adopted in California (Rogers v. Superior Court (1955) 46 Cal.2d 3, 10, 291 P.2d 929), and that a violation of a defendant's right to be taken before a magistrate without unnecessary delay does not requ......
  • People v. Williams
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    • United States State Supreme Court (California)
    • 3 Marzo 1969
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1 books & journal articles
  • Appendix II Evidence Code
    • United States
    • Full Court Press California Guide to Criminal Evidence Appendix II Evidence Code
    • Invalid date
    ...the accuseds guilt. Garabedian v. Superior Court, 59 Cal.2d 124, 28 Cal. Rptr. 318, 378 P.2d 590 (1963); Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929 (1955). The second paragraph of Section 115 makes it clear that "burden of proof" refers to the burden of proving the fact in question......

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