*1 summary, any regard questions In and without desirability Superior reexamining the decision Badillo Court, supra, opinion assuming that, I am of the even error challenged jurisdictional in the rulings, no constitutional presented here; that under the decision Roviaro States, supra, United there was no error un magistrate; competent, holding peti contradicted evidence to sustain the order superior answer; jurisdic tioner and that court has proceed tion to with the trial. petition I pro- therefore for a would writ of hibition.
Shenk, J., McComb, J., concurred. Respondent’s petition rehearing for a was denied October 28, Shenk, J., Spence, J., 1958. McComb, J., were of opinion petition granted. should be F. No. 19704. In Oct. Bank.
[S. 1958.] al., Petitioners, MARTHA MITCHELL et v. SUPERIOR COURT THE CITY OF AND COUNTY OF SAN Respondent. FRANCISCO, *2 Klang
Arthur D. for Petitioners. Attorney Edmund Brown, G. General, Clarence Linn, A. Attorney Assistant General, William M. Bennett and Arlo E. Deputy Attorneys Smith, Respondent. General, for TRAYNOR, Informations charged J. pos defendants with heroin, session of two sales of heroin and maintenance of a place for the sale narcotics in Safety violation of Health and Code, sections 11500 and 11557. Their motions to set aside the ground they informations on the legally had not been by magistrate (Pen. Code, 995) committed were denied they prevent now seek a writ of their trial. preliminary hearing Evidence at the police showed that officers received information from two informers that de- selling apartment. fendants were narcotics The of- searched the ficers two informers and all removed articles clothing. given from their Each of the informers was $20 powder. bills with fluorescent dusted The serial numbers of the bills were recorded. The officers escorted informers apartment. apart- to defendants’ The informers entered the separately ment separately. few minutes returned gone were then The bills searched. and each in- former had bindle heroin. The officers waited front apartment for about 10 or 15 door Defendant minutes. opened immediately Mitchell placed door and was under dropped package arrest. She of heroin to the floor. The Flynn officers arrested defendant in the bedroom and found person. four bindles of heroin on his The officers found the given one bills informer one of the drawers, behind dresser but did find the bills to the other informer. There was fluorescent on both Mitchell’s hands and Flynn’s finger tips and shirt. On cross-examination the objections sustained questions defendants’ seek- ing to ascertain the names of the informers. We have concluded that it was error to defendants disclosure of the prelimi- names of the two informers at the nary hearing on their cross-examination of the officer who participation testified to the pro- of the informers but that hibition does not lie to restrain trial of defendants. *3 A is defendant entitled at his trial to ascertain on cross-examination the name of an informer who is a material on guilt. witness the (People issue McShann, ante, p. v. People Lawrence, 802 33]; Cal.App.2d P.2d v. 149 [330 435, 450-451 821].) require P.2d The reasons that [308 require at the disclosure trial also prelimi disclosure at the nary hearing, right for the defendant hearing has the at prosecution’s (Pen. Code, to cross-examine the witnesses produce 865) (Pen. and to Code, witnesses his own behalf § 864, 866). rights preliminary The exercise of these at the §§ hearing may enable the defendant to that is show there no reasonable cause to commit for trial him and thus to avoid the degradation expense of a criminal trial. Prohibition not rulings does lie to review of magis the admissibility trate on the of evidence at the preliminary hear ing entirely unless the commitment is based incompetent on (Rogers Superior v. Court, evidence. 46 Cal.2d 7-8 [291 929].) P.2d Defendants do not contend that as a result of magistrate’s competent the port error there is no sup evidence to finding of reasonable cause to commit them for trial. (Cf. Priestly Superior ante, p. v. Court, 812 P.2d [330 39].) It contended, is however, right that denial cross-examination at preliminary hearing only is not
ruling on evidence but the denial of a con right. unnecessary is stitutional It to resolve this contention, there an right was not such interference with the of cross- justify this prohibition. examination in case as to a writ of appear that disclosure of the It does not names of the in demanded enable defendants formers was prosecution’s to discredit the at hearing evidence or that informers as witnesses at hearing. wished use the In deed, brief indicates otherwise: defendants’ “The defendants present than not a defense other did preliminary cross-examination hearing. required were not so to do and rarely is that not done, Honorable Court aware is foolhardy thing to be a do.” The value to but would might is that it of disclosure enable them to ob defendants at useful their defense the trial. It can tain information erroneously presumed superior' will not grant if at the trial or fail to a continuance disclosure interview necessary to enable defendants locate and it is preparation Al defense. the informers delay would have though incident to such continuance correctly, his erro ruled had been obviated admissibility of evidence does not raise neous on Superior Court, supra, 46 (Rogers jurisdictional issue. competent justify 6-7.) at Since Cal.2d in of the names of the and disclosure defendants prej trial, at defendants were obtained formers can be any right. by deprived of substantial error or udiced 1404.) (See Code, Pen. discharged writ The alternative writ is denied. J., concurred.
Gibson, Sehauer, J.,C. expressed in the I concurin the views CARTER, J. Priestly Traynor. In opinion prepared Mr. Justice have ex p. I ante, P.2d Superior Court, [330 39] length right of a de my pressed somewhat views *4 a a to cross-examine witness case fendant in a criminal material issue. right cross- of of the denial that Defendant contends right. of a constitutional case was a denial in this examination preliminary that Priestly I concluded In the right of a a constitutional hearing was denied the accused right of him the magistrate denied hearing fair where disputed cross-examination on a factual and issue on which the puted of proceedings hinged. outcome The dis- factual issue Priestly presence probable case was the of cause for the arrest and search. In this case defendant does dis- pute probable that there was cause for the arrest seizure, and but desires to know informants’ identities to better prepare precisely his defense at the trial. This is what de- However, readily fendant will apparent receive. it is testimony police relating officers the information given by the informants not crucial to the issue of whether any competent there is hold defendant. It cannot said, therefore, right the denial defendant’s cross-examination amounted to a a hearing denial of fair deprivation liberty his process without due of law. McCOMB, J. discharging I concur the order the al denying ternative writ of and a writ, reasons; following for the petition This is a restraining for writ of superior trying petitioners court from charge on a violating Safety (pos- section 11500 of the Health and Code heroin) session and section 11557 of the Health and Safety (maintaining place narcotics). Code for sale police At examination officers testified being by petitioners reliable informed two informants that selling apartment. were narcotics their stripping After searching removing the informants and all articles of clothing, gave the officers of them bills, $20 each the serial numbers of which recorded, were and escorted petitioners’ apartment. the informants to The bills were with dusted fluorescent invisible to eye. Separately, the naked apart- the informants entered the ment They few minutes returned. were then searched. The bills gone, and each had bindle of heroin. apartment then waited in The officers front door approximately opened or 15 minutes. It was petitioner Mitchell, immediately placed who was under arrest. dropped package She from her hand to the floor, which
package they heroin. contained In the bedroom arrested petitioner Flynn. Four person. bindles were found on his Behind given one the dresser drawers the officersfound the bills first did informant. not find those the second informant. With a black box flúor- observed *5 832 petitioner of Mitchell and on both hands eseent Flynn. petitioner On cross- fingertips of and shirt divulge names of refused to examination the officers informant-participants. illegally is that contention Petitioners’ sole during magistrate, because the committed prosecuting allow them to ask examination, refused informant-participants. of the two the names
witnesses prohibition presented: Will a writ Thus the of upon committing magistrate a to review the lie of preliminary ex- evidence at a or exclusion admission of amination? province that the sole of The rule is settled the writ No. proceedings person prohibition is arrest of a tribunal or of exercising judicial acting or functions when without in excess of person of the Superior Court, § 64, If the court Superior Court, p. 226; jurisdiction. Code Civ. defendant, has 188 jurisdiction 146 Cal. Cal. Proc., (40 292, prohibition 308, Cal.Jur.2d 295 § over both the 1102*; 310 [4] [204 is not available [80 County (1958), Prohibition, P. P. 65].) 849]; crime of Sutter Rebstock to re v. procedure, rulings as in or correct mere errors strain be evidence, since such errors can upon of Appeal, appeal. (Abelleira Court v. District corrected on 942, 715]; 132 McGinis 280, P.2d A.L.R. Cal.2d 287 17 [109 Cal.App. 680, 728]; Court, 682 P. State 28 v. Justice’s [153 Light Sachtjen, 245 26 Wis. ex Pardeeville Electric Co. rel. p. 70.) Prohibition, (1951), 538]; C.J.S. N.W.2d [13 Appeal, supra, a case v. District Court In Abelleira propriety court’s of this involving question as to the page it 286: issuing prohibition, was said a writ of prohibition. writ jurisdiction’ as basis “1. ‘Lack for course, be as to must, of inquiry “The first three ‘jurisdiction’; here meaning nature and must eliminated. possible sources of confusion 6 C prohibition, which never of a writ is the nature “Second committing mere error a lower tribunal to restrain issues If the lower properly it. deciding question before “The writ of Civil Procedure reads: Code of *Section 1102 of the board, corporation, any tribunal, proceedings arrests proceedings functions, exercising judicial with person are when such corporation, jurisdiction tribunal, board of such out or or excess of person.” power has to make a particular correct determination issue, clearly power has to make an decision, incorrect subject only appellate review and restraint prohibition. Hence, in examining authorities, we must conclude that in those situations which writ of particular *6 issued, was the beyond action restrained was one jurisdiction the of the court to take.” foregoing The applicable statement as to the instant case may paraphrased as follows: prohibition “A writ of never issues to restrain a lower committing tribunal properly deciding from question mere error in committing magistrate present before it. The in the power par- ease had to make a correct determination of the presented power clearly ticular issue to it. It had to make an decision, subject only appellate incorrect to review and by prohibition. not to restraint Hence, we must conclude that in this prohibition case a writ of will not issue because particular attempted the action to be restrained was one jurisdiction committing magistrate.” within the of the holding Supreme To the same effect is the of the Court Light Wisconsin in State ex rel. Pardeeville Electric v.Co. Sachtjen, supra, page where 540 the court said: “Petitioner further contends that certain evidence which it on offered the Judge Hoppmann trial improperly before excluded, was testimony that if same pres again, were offered before the presiding judge, might ent the court admit same. It is not the prohibition a writ determine the to function of on the trial an action in the circuit court. At present only question power we are concerned with jurisdiction sitting judge. of the The merits of the litigation (Italics added.) are not before us.” authority The to hear and power determine involves the to incorrectly correctly decide as well as controversy jurisdiction or within of the depend upon regularity and does not power upon exercise of that rightfulness of the de- cision there employed made. A writ of is not as a correcting means of an errors of inferior tribunal on procedure matters of where, as in instant case, alleged may appeal errors be reviewed on from an adverse judgment.
If every otherwise, ordinary rule were action a de- fendant he proceeding whenever chose halt the could in the trial applying stop for a writ of judgment until progress the action toward ordinary passed upon an intermediate
reviewing tribunal reviewing courts rule, were arisen. If such that had appellate from cases be converted in innumerable would prius nisi tribunals. courts to jurisdiction committing magistrate had that the It is clear persons petitioners charged, and the both the crime over there sub- present is evident that was It likewise case. committing magistrate’s find- support the stantial evidence petitioners probable believe that ing cause to charged. with which were guilty of the offenses petitioners’ brief: Supporting view is the statement present a other than cross- defense did not “The defendants preliminary hearing. They were not examination is aware and this Honorable Court required so to do foolhardy rarely thing be a done, is but would do.” is to an petitioners’ sole contention directed error Since improper evidence, exclusion of which procedure, wit, will rule set forth above not be error under the considered prohibition, petition for a writ alternative writ discharged correctly writ is properly *7 denied. SPENCE, J., judgment. concur in the
SHENK, J.—We