McCOMB, J. I concur in the order discharging the alternative writ of prohibition and denying a peremptory writ, for the following reasons;
This is a petition for a writ of prohibition restraining the superior court from trying petitioners on a charge of violating section 11500 of the Health and Safety Code (possession of heroin) and section 11557 of the Health and Safety Code (maintaining a place for the sale of narcotics).
At the preliminary examination police officers testified to being informed by two reliable informants that petitioners were selling narcotics in their apartment. After stripping and searching the informants and removing all articles of their clothing, the officers gave each of them $20 in bills, the serial numbers of which were recorded, and escorted the informants to petitioners’ apartment.
The bills were dusted with fluorescent powder invisible to the naked eye. Separately, the informants entered the apartment and in a few minutes returned. They were then searched. The bills were gone, and each had a bindle of heroin.
The officers then waited in front of the apartment door for approximately 10 or 15 minutes. It was opened by petitioner Mitchell, who was immediately placed under arrest. She dropped a package from her hand to the floor, which package contained heroin. In the bedroom they arrested petitioner Flynn. Four bindles were found on his person. Behind one of the dresser drawers the officers found the bills given to the first informant. They did not find those given the second informant. With a black box they observed flúor[832]eseent powder on both hands of petitioner Mitchell and on the fingertips and shirt of petitioner Flynn. On cross-examination the officers refused to divulge the names of the informant-participants.
Petitioners’ sole contention is that they were illegally committed because the magistrate, during the preliminary examination, refused to allow them to ask the prosecuting witnesses the names of the two informant-participants.
Thus the question is presented: Will a writ of prohibition lie to review the ruling of a committing magistrate upon the admission or exclusion of evidence at a preliminary examination?
No. The rule is settled that the sole province of the writ of prohibition is to arrest proceedings of a tribunal or person exercising judicial functions when acting without or in excess of jurisdiction. (40 Cal.Jur.2d (1958), Prohibition, § 64, p. 226; Code Civ. Proc., § 1102*; County of Sutter v. Superior Court, 188 Cal. 292, 295 [4] [204 P. 849]; Rebstock v. Superior Court, 146 Cal. 308, 310 [80 P. 65].)
If the court has jurisdiction over both the crime and the person of the defendant, prohibition is not available to restrain or correct mere errors in procedure, such as rulings upon the admissibility of evidence, since such errors can be corrected on appeal. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287 [109 P.2d 942, 132 A.L.R. 715]; McGinis v. Justice’s Court, 28 Cal.App. 680, 682 [153 P. 728]; State ex rel. Pardeeville Electric Light Co. v. Sachtjen, 245 Wis. 26 [13 N.W.2d 538]; 73 C.J.S. (1951), Prohibition, § 12, p. 70.)
In Abelleira v. District Court of Appeal, supra, a case involving the question as to the propriety of this court’s issuing a writ of prohibition, it was said at page 286: [833]has power to make a correct determination of a particular issue, it clearly has power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition. Hence, in examining the authorities, we must conclude that in those situations in which a writ of prohibition was issued, the particular action restrained was one beyond the jurisdiction of the court to take.”
[832]“1. ‘Lack of jurisdiction’ as a basis for writ of prohibition.
“The first inquiry in this case must, of course, be as to the nature and meaning of ‘jurisdiction’; and here three possible sources of confusion must be eliminated.
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“Second is the nature of a writ of prohibition, which never issues to restrain a lower tribunal for committing mere error in deciding a question properly before it. If the lower court
[833]The foregoing statement as applicable to the instant case may be paraphrased as follows:
“A writ of prohibition never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it. The committing magistrate in the present ease had power to make a correct determination of the particular issue presented to it. It clearly had power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition. Hence, we must conclude that in this case a writ of prohibition will not issue because the particular action attempted to be restrained was one within the jurisdiction of the committing magistrate.”
To the same effect is the holding of the Supreme Court of Wisconsin in State ex rel. Pardeeville Electric Light Co. v. Sachtjen, supra, where at page 540 the court said: “Petitioner further contends that certain evidence which it offered on the trial before Judge Hoppmann was improperly excluded, and that if the same testimony were offered again, before the present presiding judge, the court might admit same. It is not the function of a writ of prohibition to determine the admissibility of evidence on the trial of an action in the circuit court. At present we are only concerned with the question of the power and jurisdiction of the sitting judge. The merits of the litigation are not before us.” (Italics added.)
The authority to hear and determine involves the power to decide incorrectly as well as correctly in a given case or controversy within the jurisdiction of the committing magistrate and does not depend upon the regularity of the exercise of that power or upon the rightfulness of the decision there made. A writ of prohibition is not employed as a means of correcting errors of an inferior tribunal on matters of procedure where, as in the instant case, such alleged errors may be reviewed on appeal from an adverse judgment.
If the rule were otherwise, in every ordinary action a defendant whenever he chose could halt the proceeding in the trial court by applying for a writ of prohibition to stop the [834]ordinary progress of the action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen. If such were the rule, reviewing courts would in innumerable cases be converted from appellate courts to nisi prius tribunals.
It is clear that the committing magistrate had jurisdiction over both the crime charged, and the persons of petitioners in the present case. It is likewise evident that there was substantial evidence to support the committing magistrate’s finding that there was probable cause to believe that petitioners were guilty of the offenses with which they were charged.
Supporting this view is the statement in petitioners’ brief: “The defendants did not present a defense other than cross-examination in the preliminary hearing. They were not required so to do and this Honorable Court is aware that not only is it rarely done, but would be a foolhardy thing to do.”
Since petitioners’ sole contention is directed to an error in procedure, to wit, improper exclusion of evidence, which error under the rule set forth above will not be considered on a petition for a writ of prohibition, the alternative writ is properly discharged and the peremptory writ is correctly denied.
SHENK, J., and SPENCE, J.—We concur in the judgment.
Section 1102 of the Code of Civil Procedure reads: “The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.”