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District Court of Appeal, Third District, California.


Cr. 2004.

Decided: June 18, 1947

Fred N. Howser, Atty. Gen., and Ruth Bernfeld, Dep. Atty. Gen., for appellant. C. K. Curtright and Peter Mannino, both of Sacramento, for respondent.

The defendant was charged, under Section 288a of the Penal Code. After a preliminary examination by a magistrate he was held for trial in the Superior Court upon the uncorroborated testimony of the accomplice only. An information was filed, to which he first pleaded not guilty. By leave of court that plea was withdrawn and the defendant moved, under Section 995 of the Penal Code, to dismiss the information on the ground that he had been ‘committed without reasonable or probable cause.’ The motion was granted and the information was dismissed. From that order the State of California has appealed.

The chief issue on this appeal is whether the uncorroborated testimony of an accomplice furnishes proof that the alleged offense was committed, or that the accused person is guilty thereof, warranting a magistrate in committing him for trial under the provisions of Section 872 of the Penal Code. The Attorney General contends that the provisions of Section 1111 of the Penal Code, with respect to the necessity of corroborating the evidence of an accomplice, is limited to trial by a petit jury and that it does not apply to preliminary examinations before a magistrate. He also asserts that Laurel Quigley, who was the only witness at the preliminary examination, was not an accomplice to the crime.

We are of the opinion the record of the preliminary hearing clearly shows that Quigley was an accomplice. People v. Tenner, 67 Cal.App. 2d 360, 363, 154 P.2d 9; 8 Cal.Jur. 173, § 253. He willingly participated in the offense. There is no evidence to the contrary.

We conclude that the provisions of Section 1111 of the Penal Code apply not only to a trial by a petit jury, but also to legal hearings of accusations before grand juries or magistrates. That section prescribes a limitation of the sufficiency of the testimony of an accomplice as proof of a crime or misdemeanor on account of the unreliable and discredited nature of the testimony of a particeps criminis. It affects the very character and sufficiency of the evidence to establish the guilt of an accused. The uncorroborated testimony of an accomplice does not constitute credible evidence of the commission of a crime, or of the defendant's participation therein. It will not support a conviction because it is not worthy of belief. In People v. Dail, 22 Cal.2d 642, at page 655, 140 P.2d 828, at page 835, the Supreme Court said in regard to such evidence, that: ‘The requirement of section 1111 of the Penal Code the accomplice testimony must be corroborated is a convincing indication of the legislative intent and policy that such evidence is to be regarded as untrustworthy and not to be believed unless fortified by other evidence tending to connect a defendant with the commission of the offense charged. The power of the Legislature so to provide is not questioned and if it may thus stigmatize accomplice testimony and completely deny it credence unless corroborated, no valid reason exists why the Legislature may not declare, as it has done in subdivision 4 of section 2061 [C.C.P.], that the jury is to be instructed to view such accomplice testimony with distrust. * * * It merely serves to state the legislative condition upon which the jury is permitted to hear that class of evidence.’ (Italics added.)

If the uncorroborated testimony of an accomplice is not adequate evidence to support a conviction, it is not sufficient evidence, standing alone, upon which a magistrate or a grand jury may commit or indict an accused person. If it is not sufficient evidence because it is discredited, it certainly furnishes no adequate proof that a crime has been committed, or probable cause to believe that the defendant is guilty of the alleged offense. Both a grand jury and a magistrate are required to receive only legal evidence upon hearings of accusations of crime. To indict or commit an accused person without legal evidence would result in depriving the defendant of his liberty without due process of law contrary to the inhibition of the Fourteenth Amendment to the United States Constitution. Section 919 of the Penal Code provides that a grand jury shall ‘receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.’ The same rule applies to a preliminary hearing. An indictment which is based upon no legal evidence deprives the defendant of his liberty without due process, and is void. Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713. The commitment of an accused person by a magistrate, based upon mere hearsay or incompetent evidence, is likewise unauthorized and void. In re Martinez, 36 Cal.App.2d 687, 98 P.2d 528; In re Kawaguchi, 12 Cal.App. 498, 107 P. 727, 728; 7 Cal.Jur. 982, § 120. In the Kawaguchi case, supra, the court said: ‘* * * The law does not contemplate that a party shall be put upon his trial for a felony under an information having for its sole support a commitment based entirely upon hearsay or incompetent evidence.’

It is true that when hearsay evidence is received at a preliminary hearing without objection, its incompetency is thereby waived, and it may then be considered by the magistrate in determining the existence of probable cause. In re Plummer, 79 Cal.App.2d 651, 180 P.2d 771; In re Sielcken, 51 Cal.App. 538, 197 P. 668; 10 Cal.Jur. 1054, § 305; 20 Am.Jur. 401, § 452; 104 A.L.R. 1130, note. But the last mentioned exception to the general rule with respect to hearsay evidence has no application to this case. While a committing magistrate is not bound by the rule which is applicable to a trial jury, with respect to proof of guilt beyond a reasonable doubt (In re Souza, 65 Cal.App. 9, 222 P. 869), there must be substantial legal evidence of the crime and of the defendant's participation therein, to warrant the magistrate in committing the accused persons for trial under Section 872 of the Penal Code. 42 C.J.S., Indictments and Informations, § 24 c(3), p. 871.

In New York, under statutes authorizing indictments by grand juries, containing language similar to the California statutes in that regard, including our Section 1111 of the Penal Code, it has been repeatedly held that the indictments founded upon uncorroborated testimony only of accomplices are invalid and should be set aside. People v. Dally, 174 Misc. 830, 21 N.Y.S.2d 774; People v. Nicosia, 164 Misc. 152, 298 N.Y.S. 591; People v. Markan, 123 Misc. 689, 206 N.Y.S. 197. In the Nicosia case, supra, defendant's motion to dismiss the indictment was granted, on the ground that the testimony of two accomplices, upon which the indictment was founded, was not corroborated as required by Section 399 of the New York Code of Criminal Procedure. That section, similar to Section 1111 of the California code, reads as follows: ‘A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’

The court said in the Nicosia case, 298 N.Y.S. at page 599:

‘If the defendant Nicosia suborned Loffredo and Autuori as alleged in the indictment, they are all particeps criminis * * * and the testimony of the latter must therefore be corroborated by evidence which tends to connect Nicosia with the commission of the crime. * * *

‘In conclusion, as I have already indicated, sections 256 and 258, Code Cr.Proc. are protective measures intended to safeguard the right which every individual accused of crime has to the presumption of innocence guaranteed by our Constitution. It is as imperative therefore not to indict on evidence which at best can create but suspicion of guilt as it is to indict when competent legal evidence is adduced to warrant an indictment. The obligation is no more cogent in the latter case than it is in the former. * * *

‘An indictment found in violation of these standards should be dismissed. Motion granted.’

In the Markan case, supra, the indictment was also set aside for lack of corroboration of the accomplice. Commenting upon the application of Section 399 of the New York code to testimony before the grand jury, which section is similar to Section 1111 of the California Penal Code, the court said, 206 N.Y.S. at page 203 of its opinion: ‘* * * The necessity for corroboration as provided by statute applies to an indictment as well as to a trial and the indictment can be set aside at any time when it appears that the evidence before the grand jury was insufficient on which to sustain it.’ (Italics added.)

In the Dally case, supra [174 Misc. 830, 21 N.Y.S.2d 775], the court said: ‘* * * We hold that corroboration of an accomplice or accomplices is necessary to the finding of a valid indictment by a grand jury, and that in the absence of corroboration the indictment may be set aside.’

In the last mentioned case the New York court specifically disapproved of a contrary holding in the previous decision of that court in People v. Munro, 150 Misc. 41, 268 N.Y.S. 404, cited and chiefly relied upon by the appellant in this case. The Munro case was overruled in that regard, and furnishes no authority in support of appellant's contention that Section 1111 of the California code has no application to preliminary hearings before a magistrate.

The cases of In re Schwitalla, 36 Cal.App. 511, 172 P. 617 and Stern v. Superior Court, 78 Cal.App.2d 9, 177 P.2d 308, upon which the appellant relies, are not in conflict with what we have previously said regarding the necessity of corroborating the testimony of an accomplice, to render it available for consideration of a magistrate or a grand jury, to warrant a commitment or an indictment of the alleged crimes. Each of the last mentioned cases specifically holds that the record contains adequate evidence corroborating the accomplice. In the Schwitalla case [36 Cal.App. 511, 172 P. 618], the court said: ‘* * * And we may add that, to our minds, the testimony of the independent witness who gave evidence * * * furnished some corroboration, slight though it was, of the testimony of the accomplice.’

And in the Stern case the court said, 177 P.2d at page 313 of the opinion, that: ‘* * * The transcript contains the evidence of witnesses who appeared before the grand jury which sufficiently corroborates the testimony of the accomplices.’

Since there was corroborating evidence adduced before the magistrate and the grand jury in the last mentioned cases, whatever may have been said regarding the necessity therefor is mere dictum.

In the present case there was absolutely no corroboration of the accomplice, who was the only witness called or examined at the preliminary hearing. No other evidence was adduced.

We conclude that the respondent was erroneously committed for trial by the magistrate upon the uncorroborated testimony of the accomplices, and that the information was therefore properly dismissed.

The order is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.