JOHN ROGERS, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, 46 Cal. 2d 3

TRAYNOR, J. Petitioner and L. C. Elliot were charged in one count of an information with posing as kidnappers for the purpose of extorting money (Pen. Code, § 210) and, in another count with attempted extortion. (Pen. 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 Pen. 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 14-year-old daughter of Dr. Charles S. Bryan, Jr., disappeared. Late in the evening of April 28th or 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 he 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 and 999a 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, 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; 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 that either 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 and 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.

Nagel, 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’ [Code Civ. Proc., § 1825; . . .).” (People v. Schuber, 71 Cal.App.2d 773, 775 [163 P.2d 498].) An information that is based entirely on hearsay or incompetent evidence is unauthorized. (In re Flodstrom, 134 Cal.App.2d 871 [277 P.2d 101]; 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; 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. 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 90 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 eases 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 48-hour period following it. Detention beyond the 48-hour statutory maximum without being taken before a magistrate is unquestionably illegal.

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 (McNabb 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, 193 F.2d 848, 853), but, “ [T]he rule of the MeNabb ease, ... is not a limitation imposed by the Due Process Clause. [Citations.] Compliance with the McNabb 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. Nebraska, 342 U.S. 55, 63, 64 [72 S.Ct. 141, 96 L.Ed. 86].) A pretrial confession is admissible, so far as due process is concerned, if it is voluntarily made. (Gallegos v. Nebraska, supra, 342 U.S. 55, 65; Brown v.

Mississippi, 297 U.S. 278, 285, 286 [56 S.Ct. 461, 80 L.Ed. 682]; Chambers v. Florida, 309 U.S. 227, 236, 238 [60 S.Ct. 472, 84 L.Ed. 716]; Lisenba v. California, 314 U.S. 219, 238 [62 S.Ct. 280, 86 L.Ed. 166].) There is no contention in this case that the admissions were involuntary.

The test ordinarily used by state courts to determine the admissibility of a confession is, whether, considering all the circumstances, it was freely and voluntarily made without any inducement held out to the accused. (See 19 A.L.R.2d 1332, 1336-1346; 20 Am.Jur., Evidence, § 482.) Since the McNabb case, the state courts that have had occasion to reevaluate their test of admissibility as it applies to a confession made during illegal detention continue to treat delay in arraignment as only one of the factors to be considered in determining whether the statement was voluntarily made.

Apparently none of the states following the rule excluding illegally obtained evidence have adopted the rule of the McNabb case; and we are not disposed to adopt it. There is a basic distinction between evidence seized in violation of the search and seizure provisions of the Constitution of the United States and the Constitution of California and the laws enacted thereunder, and voluntary statements made during a period of illegal detention. It may be true, as petitioner contends, that had he been arraigned within 48 hours and advised of his rights, he would not have volunteered to say anything. (Cf. People v.

Stroble, 36 Cal.2d 615, 626, 627 [226 P.2d 330]; and see People v. Zammora, 66 Cal.App.2d 166, 220 [152 P.2d 180].) Nevertheless, there is lacking the essential connection between the illegal detention and the voluntary statements made during that detention that there is between the illegal search and the evidence obtained thereby, or between the coercion and the confession induced thereby. The voluntary admission is not a necessary product of the illegal detention; the evidence obtained by an illegal search or by a coerced confession is the necessary product of the search or of the coercion.

When questioned by arresting officers a suspect may remain silent or make only such statements as serve his interest; the victim of an illegal search, however, has no opportunity to select the items to be taken by the rummaging officer (State v. Sanford, State v. Ellis, 354 Mo. 998, 1012 [193 S.W.2d 37, 38] concurring opinion of Hyde, J.; State v. Guastamachio, 137 Conn. 179 [75 A.2d 429, 431]; cf., Milbourn v. State, 212 Ind. 161 [8 N.E.2d 985, 986]; Quan v. State, 185 Miss. 513 [188 So. 568, 569]; 14 So. Cal.L.Rev. 477), and the victim of a coerced confession has been deprived of any choice.

The record of the preliminary examination is devoid of any implication that the detention in this case was resorted to for the purpose of inducing the admissions, and petitioner makes no contention that they were not freely and voluntarily made. Accordingly, since there is no evidence that the illegal detention produced the admissions, we find the exclusionary rule inapplicable. The alternative writ of prohibition is discharged, and a peremptory writ is denied. Gibson, C.

J., Shenk, J., Spence, J., and McComb, J. pro tem., concurred. “The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following eases: “If it be an indictment: “1. Where it is not found, endorsed, and presented as prescribed in this code. ‘ ‘ 2. That the defendant has been indicted without reasonable or probable cause. “If it be an information: “1. That before the filing thereof the defendant had not been legally committed by a magistrate. “2.

That the defendant had been committed without reasonable or probable cause.” “A petition for a writ of prohibition, predicated upon the ground that the indictment was found without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, must be filed in the appellate court within 15 days after a motion made under

Section 995 of this code to set aside the indictment on the ground that the defendant has been indicted without reasonable or probable cause or that the defendant has been committed on an information without reasonable or probable cause, has been denied by the trial court. ...”

Section 145 of the Penal Code provides: “Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take. such person before a magistrate having jurisdiction, to take his examination,'is guilty of a misdemeanor. ’ ’ Assigned by Chairman of Judicial Council.