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GOLDEN GATE CANDY PRODUCTS CO. v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.a1
As submitted this is a proceeding in certiorari. Heretofore Morris Maidl was arrested on a charge of violating section 476a of the Penal Code, that is, issuing checks with intent to defraud. The arrest was made in his place of business. Before leaving the room he turned to an assistant and taking a wallet out of his hip pocket he handed it to her with directions to keep it for him. The arresting officer stated he could not do that and directed the assistant to hand the wallet back to the defendant. As she did so the officer took the wallet, and when the defendant was booked at the police station the wallet and its contents were delivered over to the property clerk. The wallet contained $1,373 in cash and $500 in checks. Thereafter an action was commenced in the superior court by this petitioner against Morris Maidl et al. The complaint in that action was framed in two counts. In the first count the plaintiff alleged a cause of action as for goods sold and delivered for the agreed price of $13,076.37. The second count was as for the reasonable value. After commencing the action the plaintiff took out a writ of attachment and caused it to be served on the property above mentioned as being in the custody of the property clerk. Later the defendant appeared in the civil action and made a motion to vacate, set aside, and quash the attachment. After a hearing had the trial court made an order granting the motion to review that order this proceeding was commenced.
The petitioner contends that it was within its rights in causing the contents of the wallet to be garnished. The defendant earnestly contends that under the law the property was not subject to garnishment. In Emmanuel v. Sichofsky, 198 Cal. 713, at page 715, 247 P. 205, 48 A. L. R. 580, Mr. Chief Justice Waste states as follows: “From the authorities upon the subject it may be gathered as a general rule that, if money on the person of a prisoner when outside the prison walls is not subject to seizure, it is not subject to attachment or garnishment when it passes involuntarily from his possession to the custody of the officer appointed by law to take it into possession, when such person enters as a prisoner within the walls. Public policy requires the adoption and maintenance of this rule. Were it otherwise, it would lead to a grave abuse of criminal process. It would tempt creditors whose debtors keep their funds upon their persons, and thus beyond the reach of civil process, to make unfounded criminal charges against their debtors, and bring about their arrest and the transfer of their funds to the custody of the arresting officers, in order to make them reachable by the process of garnishment. It needs no citation of the cases to show that the general rule, as thus broadly stated, is supported by the preponderance of authority.” See, also, 28 C. J. 76; 14 Am. & Eng. Ency. 827; 1 Freeman on Executions, § 130a; 12 R. C. L., p. 811; Williams v. Edelstein, 143 Wash. 198, 253 P. 596. It will be conceded that there are exceptions to the rule. The petitioner cites Coffee v. Haynes, 124 Cal. 561, 57 P. 482, 71 Am. St. Rep. 99. It is not helpful. In that case the defendant Haynes was charged with the crime of homicide. He claimed that his act was committed in defending himself from robbers. To verify his claim the officers took him to the place and in their presence he excavated cans containing money and jewelry. That property was taken to the court to be used as evidence in the trial of the charge of murder. It does not appear from the decided case that anything of value was taken from the prisoner when he was arrested. Petitioner also cites Emmanuel v. Sichofsky, 198 Cal. 713, 247 P. 205, 48 A. L. R. 580. The defendant in that case was charged with having committed grand larceny. He was convicted and appealed from the judgment. The judgment was affirmed. While the appeal was pending the defendant became a fugitive from justice. Some three years later he was recognized, taken into custody by the sheriff, and delivered at the state prison. When he was arrested the second time he had on his person $35,890, which sum was turned over to the warden of the state prison. Thereafter Emmanuel recovered a judgment against the defendant in the sum of $14,300. Execution issued on that judgment and was levied on the property so in the hands of the warden. Addressing itself to those facts the court held that the general rule stated above did not apply.
The petitioner cites many cases from other jurisdictions. It will serve no useful purpose to attempt to analyze each one. As stated above, it will not be claimed that the rule is the same in all jurisdictions. However, it will not be claimed that Mr. Chief Justice Waste erred in stating the general rule in the language we have quoted above. The petitioner makes a point that property taken from the hand is not taken from the person and it cites and relies on Green v. Palmer, 15 Cal. 411, 418, 76 Am. Dec. 492. In that case no arrest was involved and we do not understand the defendant to question the doctrine of that case. Finally, the petitioner asserts that property connected with a criminal charge, or which represents the fruits of the crime charged, or which was obtained from the plaintiff in the attachment suit by a criminal or illegal act, is subject to garnishment in the hands of the arresting officer or authorities, even though taken from the person of a defendant upon his arrest upon a criminal charge. Without going into the subject in detail it may be conceded that there are some authorities sustaining the contention made by the petitioner. Reifsnyder v. Lee, 44 Iowa, 101, 24 Am. Rep. 733. Such exceptions stand on the particular facts of the particular case. The case last cited involved the theft of some cattle. The thief sold them to the plaintiff. The latter returned the cattle to the owner, caused the arrest of the thief, and then sued him and garnished the proceeds then in the hands of the arresting officer. The court held that the garnishment was valid. In the instant case the petitioner does not claim that the entire contents of the defendant's wallet were even the proceeds obtained from the sale of goods theretofore sold by the petitioner to the defendant. Neither does it make a showing that said goods were stolen, obtained under false pretenses, or through any other criminal act. Therefore we think that the instant case does not come within the doctrine of Reifsnyder v. Lee, supra.
Pointing to the fact that the wallet was in the hand of the defendant Maidl when it was taken by the arresting officer, and that property taken from the hand is not taken from the person (Green v. Palmer, supra), the petitioner contends that its case does not fall within the general rule. In making that argument we think it overlooks the fact that at the time of the taking Maidl had been arrested and that the taking was an involuntary act so far as Maidl was concerned. The uncontradicted evidence is that Maidl wanted to pass the wallet to his assistant but was prevented from doing so by the arresting officer. We think the case falls within the general rule hereinabove mentioned and not within any of the exceptions that have been called to our attention.
The order attacked is affirmed.
STURTEVANT, Justice.
We concur: NOURSE, P. J.; SPENCE, J.
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Docket No: Civ. 9532.
Decided: August 30, 1934
Court: District Court of Appeal, First District, Division 2, California.
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