Mitchell v. Superior Court

[285]

FINCH, J.,

pro te

m,.

This is an original proceeding on

certiorari

to annul a judgment of the respondent court adjudging the petitioner guilty of the offense of driving an automobile at an unlawful rate of speed on one of the streets of the city of North Sacramento. He was first tried and convicted in the city police court. The judgment of conviction was reversed on appeal to the superior court and upon a retrial in that court he was again found guilty.

The uncontradicted evidence shows that the petitioner committed the offense of which he was convicted. He was arrested by a police officer of North Sacramento, who was engaged at the time in patrolling the streets thereof but whose duties were general and not limited to patrolling the streets. . At the time of the arrest the officers was riding in an automobile painted green. The only evidence tending to prove the petitioner’s guilt is the testimony of such police officer. Petitioner’s sole contention is that the officer is incompetent as a witness because his automobile was not painted white, the distinctive color “determined upon by the division of motor vehicles.” Section 155 of the California Vehicle Act (Stats. 1923, p. 517, see. 155; Stats. 1929, p. 508, sec. 70) provides:

“Every officer when on duty for the purpose of enforcing the provisions of this act shall be dressed in a full distinctive uniform, and no officer shall use an automobile for patrolling public highways in the performance of such duty, unless such automobile is painted a distinctive color such as may be determined upon by the division of motor vehicles.

“In any prosecution under this act upon a charge involving the speed of a vehicle, any officer or officers arresting or participating or assisting in the arrest of the person so charged shall he incompetent as a witness or witnesses if any speed trap was used in such arrest, or when an automobile was used by such officer or officers in violation of the provisions of this act, or the officer or officers were not in full uniform, and the court shall be without jurisdiction to render a judgment of conviction upon the testimony procured by the use of a speed trap or by any such officer or officers so using an automobile not in conformity with the act or not in full uniform.”