*1 that, shown, elusion under if those the circumstances there accepted true, now can facts the conviction James rights clear violation of his constitutional he entitled to have it set aside.
However, I see no referring reason for here to the law applicable which would be in the event that is tried and James manslaughter. convicted of contingency That is a which has nothing to present do with the proceeding. decision A. No. 25, 21949. In Bank.
[L. Jan. 1952.] WARREN COVERSTONE, Minor, etc., Appellant,
L. DAVIES, Individually Deputy Sheriff, etc., N. and as al., Respondents. et A. No. In 21950. Bank. Jan.
[L. 1952.] WILLIAM L. MOCK, a Minor, etc., Appellant, v. L. N.
DAVIES, Individually Deputy Sheriff, etc., al., and as et Respondents. A. No. In
[L. 21951. Bank. Jan. 1952.] DAVIES, In- al., et v. L. N. Appellants, ROLLA D. MOCK dividually Deputy Sheriff, etc., al., Respond- et and as ents.
G. Paul DuBois and R D. Appellants. Mock for County Kennedy, (Los Harold W. Counsel Angeles), Wm. County Lamoreaux, Deputy E. Counsel, Noble, H. Burton City Attorney (Pasadena), City Prank L. Kostlan, Assistant Attorney, Miehalski, Deputy City Robert E. Crider, Attorney, Tilson, Ruppe & Anderson, Donald Runkle McPharlin & Respondents. for Conners
SPENCE, J. Warren Coverstone and William L. Mock, guardians respective litem, brought their ad against actions Angeles County deputies; the sheriff Los and five of his city manager, police chief of police and three officers of the city Pasadena; respective and their sureties; charging (a) arrest, (b) false (c) malicious prosecution, assault and (d) battery, conspiracy and trespass, upon based plaintiffs subsequent arrest of these and their trial wherein acquitted. D. Mock, were Rolla Mock and Velma M. parents Mock, brought of William L. against also an action alleged for an right same defendants violation of their predicated upon privacy publicity attendant the ar rest and trial their son. The three cases were consolidated plaintiffs’ for trial. At close of cases, nonsuits were granted as all defendants on their motions therefor. Plain appealed judgments tiffs have from the accordingly. entered Plaintiffs contend nonsuits improper because prima against had out made facie cases all defendants. Viewing light the evidence in the plaintiffs most favorable to disregarding conflicts, accordance with the settled rule testing propriety Calaway, nonsuits (Lawless 81, 604]; Lashley P.2d Cal.2d Koerber, 26 Cal.2d ; McCurdy 84-85 Hatfield, Cal.2d 269]), plaintiffs’ we have concluded that con *4 sustained, judgments tentions cannot be and that of non- proper. suits were therefore January 17, 1947,
On a group of students from Pasadena College gathered Junior had near the intersection of Sierra Madre Boulevard and Angeles Sierra Madre Villa in Los County. purpose Their was to view a “hot-rod”'race. Plain- tiffs Warren and William Coverstone Mock were in group,
319 upon they the trial but claimed did not know that a race proposed "progress. had or been was in Defendants Mansell Hoskins, and deputy two involved, sheriffs arrived on patrol stay car group the scene a and ordered to- gether. Shortly thereafter these officers were reinforced Captain Deputy Cook and of the sheriff’s office and Davies Officer and two other Frakes uniformed officersfrom the Pasa- City dena Police. Frakes,
At behest Officer the students were taken into custody and escorted to the sheriff’s Altadena substation. segregated There Coverstone and Mock were group from the years over 18 age, because were and were taken to the city jail by Deputies youths Mortenson and Knezevich. The were city jail received at the through conducted the usual procedure, including booking, photographing, fingerprint- ing. They were personal searched and their belongings were removed. After several hours upon were released their own recognizance, their personal belongings were returned. January On 20, 1947, they arraigned complaint were on a signed by Davies, charged defendant which violation of Penal Code, (unlawful section 407 assembly). They pleaded not guilty, and subsequently charge were tried on the and ac- quitted. contend
Plaintiffs
that the above-recited facts are sufficient
predicate
cause of action for
arrest,
unlawful
the arrests were
made without a warrant and the crimi
proceeding
nal
terminated in
guilty.
verdict of not
While
purposes
pleading,
for the
it
illegality
has been held that the
presumed upon allegations
an arrest is
of an arrest without
subsequent
and a
(Kaufman Brown,
confinement
warrant
Cal.App.2d 508, 512
P.2d
; Mackie v. Ambassador
[209
156]
Corp.,
his § presence the acts in of is done the the this case whether justified being made arresting officer the arrests without warrant. was assembled disputed group
It is not the illegal purpose a “hot-rod” renders the ac view race. Such group knowingly participating of the therein an tion unlaw assembly meaning ful within of section 407 Penal the they upon the scene, Code. When the officers arrived authority engaged all in the commis had the to arrest those act, sion of the and in our view were entitled unlawful determining appearances on who were to act reasonable upon parties patent to the It is that the officers acted offense. probable arresting cause in Mock as members and Coverstone assembly. being case, unlawful Such arrests as being were lawful arrests for acts committed in the officers’ presence. States,
Thus as was said in 1 F.2d Garske v. United 620, 622, a search case: and seizure is the well-established “It throughout crime, now that for a doctrine United States probable being have cause to is committed believe duly presence, though misdemeanor, in their it be a authorized ’’ may peace officers make an arrest without a warrant. Or proposition fashion, in another to state same of presence within fense committed in the of an officer meaning 836, such as Penal when “circum Code, statute § exist that cause a stances would reasonable believe ’’ (Ryan has presence. that a crime been committed his v. Conover, 361, rule, App. 59 Ohio 364 N.E.2d Such [18 other, consistently in the one or the followed stated form (United Wiggins, 1001, 22 federal States F.2d courts v. 1002; States, 881, 883; Peru 4 F.2d United v. United States v. 704-705) many Stafford, 702, (State 296 F. state courts Reynolds, 224, ; Day, 101 229 Hill v. Conn. A. v. [125 636] ; 219, Chaplin, Kan. 604 Commonwealth v. 168 [215 224] Ky. 630, 841]; 636 Garland, Giannini v. 296 307 S.W.2d [211 Ky. ; 478, 361, Cooley, 366 48 S.W.2d Cave v. N.M. [177 133] People ; Esposito, 867, v. 118 481-482 Misc. [152 886] ; City N.Y.S. Bock v. 872 Cincinnati and [194 326] City Cincinnati, 257, Tapp App. 43 Ohio 261-263 [183 dismissed, 666, error 124 667 N.E. Ohio St. N.E. [181 ; Ritchie, 391, Noce v. 109 879, W.Va. S.E. 127] 888] [155 Fidelity York, New ex & Cas. rel. Verdis v. Co. State 884]; Rigsby, 124 593, State W.Va. W.Va. S.E. respect mis 906]). With such 344, 349-350 S.E.2d in the com involved, rule is embodied as is here demeanor England England (9 Halsbury’s Laws of § mon law Restate 88) expression in section 142 p. and has found Mullen, As ment of Torts. stated State the Law may be : “Whatever else said P. Mont. exacted of the officer subject, can be the utmost that circumstances shall who arrests without a warrant is that *6 making justified upon such them alone he would be in that complaint might upon which a warrant issue.” rely language in Plaintiffs, however, upon and cite certain prob cases to effect the doctrine of California the that inapplicable able cause is to without a in cases arrests warrant (Ware Dunn, Cal.App.2d 936, misdemeanor. v. Owens, Cal.App.2d P.2d Collins v. 128] ; People Supp. 906, P.2d Perry, Cal.App.2d 908-909 The Ware Collins cases involved situations which the upon complaint arrests were made the of others. The facts indicated com that no offense had been presence mitted in the arresting the The facts officers. Perry the ease, on hand, the other appear to be somewhat similar presented to those here, although appear does it whether justified any the officer making arrest under the circumstances, question. let alone the However, arrest we deem the language Perry ease, any implication the in the language of cases, the other to be as incorrect insofar such language application denies the prob the doctrine able cause to a situation in which an officer makes arrest for acts done within presence, his would acts cause person reasonable being to public conclude that a offense is committed the who is arrested. upon
When an arrest for a misdemeanor is
the
made
complaint
arresting
of one other than
officer,
the
is proper
it
require
securing
justify
to
aof warrant
the arrest.
Dunn,
(Ware
supra,
Plaintiffs next
Captain
Deputy
of the Los
against
of action
Cook and
Davies
maliciously instituting
county
Angeles
sheriff’s office for
against plaintiffs Mock and Coverstone.
proceeding
criminal
upon
However,
contended,
is not
nor could it be contended
it
acting
presented,
here
out
the record as
defendants
authority.
being
case,
scope
side
of their
Such
Towers,
principles announced in White
While the
of action for the invasion of one’s
recognized
(Melvin Reid,
in California
v.
112
privacy is
Cal.
;
Studios,
285,
Kerby
P.
Hal
App.
289-291
Roach
91]
210
Inc.,
Cal.App.2d
v. Los
53
Metter
Examiner,
Cal.App.2d 304,
491]),
Angeles
principles
govern
right
that the
to recover
it is clear
encompass
theory do
facts
herein.
on such
not
asserted
(See
Reid, supra,
Cal.App. 285,
The
290.)
Melvin v.
ordinarily
publica
unwarranted
of the tort is
gravamen
private
plaintiff’s
life.
by
of intimate details of
tion
defendant
446.)
168 A.L.R.
22;
138 A.L.R.
annos.
(See
pub
In
such unwarranted
instant ease there is no
plaintiffs’ private
lication
defendants of intimate details
legal
Even if it
were the
lives.
be assumed
defendants
subsequent
publicity concerning
cause of the
the arrest and
son,
prosecution
plaintiffs’
inescapable
the conclusion
give
publicity
nature
that such
of such
as to
rise to
concerning
plaintiffs.
cause of action
The facts
the arrest
charged
prosecution
of those
with violation of
law are
general public
publication
matters of
interest. Therefore the
cannot,
details
such official actions
absence
de
famatory
(Metter
statements,
Angeles
be actionable.
Los
Examiner, supra,
Cal.App.2d 304.)
The last cited
case
peculiarly pertinent
presented
issue
to the
herein.
In that
case, plaintiff’s
had
wife
committed
in a rather
suicide
bizarre
newspaper
published
manner. Defendant
had
an account
tragedy together
pictures
building
with
of her and the
plunged
from which she had
to her death. Plaintiff was men
only
tioned
as
quoted
her husband and was
as
circum
surrounding
stances
her suicide.
plaintiff
was held
It
had suffered no actionable invasion
privacy,
of his
the court
stating; “There are times, however,
one,
when
whether will
ingly
not,
or
becomes an
public
actor
occurrence
general
When
place
emerges
interest.
this
he
takes
from his
seclusion, and it is not an
right
invasion of his
of privacy to
’’
publish
photograph
his
with an account of such occurrence.
(
So far as the briefs and research have revealed, there been have no instances wherein courts have recovery theory, allowed on this where alleged defendant’s wrongful act was directed person, toward a third only an incident to that act plaintiff’s was it claimed privacy had been authority invaded. Neither reason nor indicates *8 an there should be liability extension of to cover such a open situation. Such a rule would persons the courts to whose only wrong relation to the asserted is that are related to of wrongdoer the victim the and were brought therefore limelight.
unwillingly Every defamation, into the im- false prisonment, prosecution and malicious then be an ac- would privacy of tionable invasion the relatives of victim. maintain, is thus as defendants apparent, It depart from there is no need in this case to the established prosecution false rule that actions for arrest and malicious give personal are actions which do not rise to a cause action (34 anyone directly aggrieved. Am. other than the person Smith, 82, p. 754; 719; Rogers v. p. Jur. 39 Am.Jur. § § 483]; Sperier Ott, Ind. 116 La. Am.Dec. 1087, 1089 So. judgments
The are affirmed. G-ibson, J., J., J., Traynor, J., Shenk, Edmonds, C. concurred.
CARTER, J.
I dissent.
is,
majority
apparently,
The
determined
this court
arrest,
or malicious
imprisonment
no action for false
false
prosecution
against anyone
with
en-
shall lie
connected
Towers,
(see
The Penal Code. charged with violation of section persons more provides That “Whenever two or section that: separate without together act, to an unlawful assemble do violent, in a doing advancing it, act toward or do a lawful boisterous, assembly manner, unlaw;- or tumultuous such assembly.” group of students ful The record shows that An- in Los gathered near streets were the intersection two have majority would geles. so clear as The record race.” purpose was view a ‘hot-rod’ us believe that “their boys guilty by jury These were found not of the misdemeanor charged pursuant with the above Penal only implications It me that appears Code section. two *9 they were not assembled be from the verdict: That can drawn they or do act that the lawful act for an unlawful “violent, in a being was carried forward were assembled not boisterous, provided or manner” as in the Penal tumultuous undisputed present together boys is that the were Code. It assembly there was with a number of other students so that an majority in persons. opinion two more It is stated the lawfully peace may an ... a officer made arrest “Since public presence a in his attempted for offense committed or (Pen. Code, 836), question presented the critical this ease § presence arresting is whether the acts officer done the justified being the arrests made without a warrant.
“It disputed is not group that the was assembled to a view illegal purpose ‘hot-rod’ race. Such renders the the action of group knowingly participating assembly therein an unlawful meaning within the of section 407 of the Penal Code.” (Italics added.) jury, by But illegal the its verdict, found no purpose. is boys There no evidence that these participated race, the hot-rod they or that even knew that going there was be one at place. People that time Palmer, In 76 Cal. App.2d 679, 685 it was said: “. . well . it is question settled that the person whether or a not who is present shown to have been at the time place of the com mission of a crime has aided and abetted therein is one of fact jury for the to decide from all proved.” the circumstances jury And the here returned guilty.” a verdict of “not The boys mere fact that the present were when the officers arrived does not constitute the existence of such circumstances as would cause a reasonable to believe that a crime being committed the presence of the officersso toas warrant an this arrest without a warrant. Under holding the ease, any an officer bystander could arrest innocent who unfortu nately happened to passing by any scene im crime, prison him, say and then that because happened he to be in vicinity, probable him there was cause to believe guilty. specifically provided (Pen. It is Code, 836) a peace § may officer person, a arrest without a warrant “for a offense or attempted presence.” committed in his boys These standing were on the bank side of the road when One merely spectator were arrested. who a at scene of crime, a who does not participate therein, nor aid or abet its commission, cannot party be held (People to it. v. Wood ward, 45 Cal. Am.Rep. imprison- majority feels that the arrest and
It seems that boys at that were assembled were lawful ment because the doing, ver- illegal In so particular spot purpose. for an For there is, by implication, set aside. dict case criminal illegal purpose had been verdict showed that there assemblage young in the people. boys after the imprisonment concerned, far as the
So plaintiffs’ evidence shows warrant, arrested without magistrate prior to incarcer- were not taken before commitment, ating them and there were no orders of *10 contrary 145 was to sections conduct of officers the prisoners and 849 of of for an the Retention Penal Code. unnecessary magistrate’s a commitment period without of time order, (Gomez Scanlan, 155 imprisonment. v. constitutes false 528 Cal. P. [102 from which it could record
There is also evidence the by police complaint was filed the officers the be found that possibility of lawsuits plaintiffs to avoid the these against Mock, father of one imprisonment. Mr. false for arrest Captain Cook, one of the de- plaintiffs, of testified that the here, him to his office and remarked that called fendants boys that against been filed the but complaint had not liability they (the from police) were released unless protect In Franzen v. do to themselves. so would have 932], it 572, 580-583 P. was said: Shenk, 192 Cal. [221 . . appears anywhere during the trial . that the if . . it “. actually guilt of not believe in the the did defendant crime, then that essential element charged with fact question of of in the determination the considered to be had probable defendant cause. or not the whether n prove may which tends to malice . . the same evidence “. part lack belief of de- if it indicates a on the the also, guilt plaintiff, prove of the tend in the want fendant If, on probable hand, ... the other in addition to cause. by malice, was a lack of belief the in the there defendant cause, guilt plaintiff, probable there was want of of the justify existence of facts which would sus- despite the picions guilt reasonable man accused.” light Viewing plain- the evidence most favorable to disregarding conflicts as this court must do tiffs nonsuits, propriety appears testing it to me that ample jury evidence from which could have there did these defendants not themselves believe that found probable cause or grounds had either reasonable for the imprisonment prosecution plaintiffs. arrest, of these No permitted bring unwarranted, officer should be unfounded against any charges purpose individual for of render- ing liability. himself immune from opinion noAV, my
I I I am the as Avaswhen wrote dis- Towers, supra, sent in White protection of in- should rights zealously guarded dividual from unwar- police privilege ranted action and im- police be so munity protects any should extended it laAV enforcement officer who on chooses to make an arrest mere conjecture. suspicion or majority
The
decision in
case
step
sup
this
is another
port
police
philosophy
majority
state
which the
approved
this court has
sanctioned
several recent
(see People
decisions
Rochin,
Cal.App.2d 140 [225
by
reversed
S. Supreme
P.2d
U.
Court, January 2, 1952,
California,
Rochin v.
see
Appellants’ petition for a rehearing was denied February Carter, J., Schauer, J., 1952. were of opinion petition granted. should