LAWLOR, J., Dissenting.
I dissent. Did the police court acquire jurisdiction by the filing of a complaint against the petitioner? If none was filed the proceeding was wholly void, and concededly the petitioner should be discharged. It is admitted that no complaint could be found at the time of the hearing. Parol evidence was, however, introduced to the effect that prior to ,the case being called a complaint had been filed. Police Officer William J. Harrington, who arrested the petitioner, testified that a complaint was drawn in the office of the bond and warrant clerk; that he swore to it before the judge in open court; and that he left it on the judge’s desk. The judge’s testimony on this point was that he had no independent recollection of a complaint, and the official who, it is claimed, framed the pleading, was not produced as a witness. The clerk of the court testified
[16]
that he had seen a complaint during the proceedings, although in another part of his examination he stated: “I don’t remember of no complaint except what is on the calendar sheet.” I have reached the conclusion that the clerk was not speaking from recollection, but based his testimony on the custom followed in the police court. This witness called attention to the absence from the loose “docket sheet” of the notation, “no complaint filed,” which he said was customarily stamped opposite the .title and number of the cause, as they appeared on such sheet, whenever a complaint had not been filed. But, however that may be, the fact remains that no entry of a complaint appeared on the “docket sheet”—which represented the only “minutes” kept by the clerk. Officer Harrington further testified that he saw a complaint in the superior court during the hearing of a similar writ, but that he did not “know what the custom is, whether to bring the original or a copy.” He was finally asked whether, so far as he knew, the last time he saw the complaint was not when he swore to it and placed it on the judge’s desk, and he answered: “Yes, sir.” Attached to the return of the chief of police in the superior court is a printed form of complaint purporting to charge the petitioner with the commission of each of the eleven acts denounced as independent crimes in section 647 of the Penal Code. The names of the petitioner, the complaining witness, and the judge of the police court, and the date it is alleged the specified offenses were committed, are filled in in typewriting. This paper is not certified by the county clerk, the
ex-officio
clerk of the police court, and the custodian of its records. The return does, however, contain this language: “ ... a copy of which complaint is hereunto annexed and the original thereof produced and exhibited to this court.” But no one having knowledge whether an original complaint or a copy thereof was actually “produced and exhibited” in the superior court was called to testify, nor was any attempt otherwise made to confirm or negative Officer Harrington’s testimony in that regard. It may be mentioned in passing that the cases of nine other men were before the court at that time, and that no complaint was produced in any of them.
[17]
The prevailing opinion relies in part on the presumption that “official duty has been duly performed.” This is a disputable presumption which, unless overcome by other evidence, must prevail. (Subd. 15, sec. 1963, Code Civ. Proc.) But has this rule of presumption any application where the jurisdiction of a court of inferior or limited jurisdiction is called in question? In this respect a distinction is to be drawn between the acquiring of jurisdiction and the proper exercise thereof. The rule of evidence where the jurisdiction of inferior court is questioned is thus stated in 15 Corpus Juris, at page 832: “The mere exercise of jurisdiction by courts of inferior, limited, or special jurisdiction, does not raise a. presumption of the existence of the requisite jurisdictional facts, for nothing is presumed to be within the jurisdiction of such courts.” It is also said in the same volume at page 842: “There being no presumption in favor of the jurisdiction of a court of inferior, limited, or special jurisdiction, it is usually considered necessary, in order to sustain the proceedings of such a court, that the record should affirmatively show that the court had jurisdiction.” Among the cases cited in support of the above text is
Ex parte Kearny,
55 Cal. 212, wherein the petitioner was discharged on
habeas corpus
on the ground that the complaint did not state facts sufficient to constitute a public offense. It was said in that case at page 214: “The police court of the city and county of San Francisco is an ‘inferior court’' of limited jurisdiction, whose powers are conferred, and whose duties and mode of procedure are prescribed, by statute, and to which the rule applies that the evidence, of its proceedings must affirmatively show jurisdiction of the person of the defendant, and over the subject matter.” The same rule would, of course, apply where there is no complaint at all. The respondent sets up in his return a “commitment”—which purports to be a “copy,” although it is not certified—but, as the issuance of a commitment is an act in the exercise of jurisdiction, and jurisdiction must be affirmatively shown in the case of a court of inferior or limited jurisdiction, it must affirmatively appear that jurisdiction was conferred by the filing of a complaint. (Pen. Code, sec. 1426.) In my opinion, where the jurisdiction of such a court, particularly
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where life or liberty is involved, is in issue, and especially where it is sought to establish that jurisdiction by parol, the proof must be of the clearest and most convincing character. The law requires, justice demands, and the courts should see to it that the individual is not put to trial unless it plainly appears that the court has jurisdiction to act. In the determination of this question it is not enough that the evidence may tend to show that a complaint was filed or that it may be involved in conflict. We must carefully weigh the evidence and give to it the force to which it is entitled. Sneaking as one of the triers of the fact, I am convinced from the evidence, upon whichever side the burden of proof may rest, that the petitioner was sentenced by a court which had never acquired jurisdiction by the filing of a complaint.
I am also convinced from the evidence that the proceedings in the police court did not, either in form or substance, constitute a trial, “according to prescribed forms and in accordance with the general rules for the protection of individual rights.”
(Kalloch
v.
Superior
Court, 56 Cal. 229, 240.) In reaching this conclusion I have not failed to observe the distinction between the absence of a trial which would involve a violation of constitutional guaranties, and the erroneous exercise of jurisdiction in the course of a trial the remedy for which would be by appeal. Nor have I considered whether the prisoner was guilty of any or all of the eleven acts specified in the printed form of complaint already alluded to.
The police court of the city and county of San Francisco is the creation of the municipal charter thereof, but also has jurisdiction in crimes prescribed by the state. The legislature, in title XI, Part II, of the Penal Code, has provided a special form of procedure in criminal offenses in justices’ and police courts: “Police courts” include “Police judges’ courts.” (Section 1461.) Jurisdiction is acquired by the filing of a complaint. (Section 1426.) The minutes of the action and proceedings must be kept in a docket. (Section 1428.) In arraigning the accused, and in the receiving and recording of the plea, the same procedure is required as in the case of an indictment. (Section 1429.) If a jury is not waived, the charge must be tried by jury, otherwise by the court. (Sections 1430 and 1435.) Either party may, upon
[19]
good cause shown, have a reasonable postponement. (Section 1433.) After a plea or verdict of guilty the court must appoint a time for rendering judgment, which must be not more than two days or less than six hours after the plea or verdict, unless the defendant waive the postponement. (Section 1449.) “At any time before judgment, defendant may move for a new trial. ...” (Section 1450.) The judgment must be entered in the minutes of the court. (Section 1453.) A
certified
copy of the judgment must be delivered to the sheriff. (Section 1455.)
The petitioner should have been tried, therefore, under the above procedure, and yet there was a palpable disregard of practically every one of the foregoing provisions. I shall find it necessary, in order adequately to describe the proceedings, to state what was done in the cases of the nine other men—which were before the court and were disposed of at the same time—for the reason that, if it could be said there was an attempt to conduct a hearing, there was at most a single hearing. What happened was this: The petitioner had been released on $25 cash bail and was in the body of the courtroom when the proceedings began. The other nine men were brought from the dock and lined up before the judge. Officer Harrington was sitting in a chair “right alongside” the judge’s desk. To my mind the weight of the evidence is against the testimony of Officer Harrington that he was sworn as a witness. The judge did not remember and the clerk was not questioned as to whether Officer Harrington or anyone else was sworn. Charles T. Kelley, who was present, testified that Officer Harrington was not sworn, and Wells Fadden, one of the nine men stated: “When I come up I don’t knew whether he was sworn.” It was not testified that any other witness was sworn in any of the ten eases. I shall hereafter have occasion to refer to the “docket sheet,” wherein petitioner is designated as a witness. At any rate, while the nine men were standing in the presence of the judge, and while the petitioner was making his way to take his place in line— his name being the last called, the judge asked Officer Harrington: “What about these men?” The substance of the reply was that they were vagrants and had been “hanging around Third and Market.” The judge thereupon proceeded to ask each man successively: “What have you to say for
[20]
yourself?” Wells Fadden answered that he was employed by the Santa Fe, but it does not appear that any of the others made a reply to the judge’s questions, and it is not claimed that, any further inquiry was made into the question of, their guilt or innocence. Eight of the men were given “twenty-four hours to leave town,” and Wells Fadden was convicted. As already noted, petitioner’s case was the last called, and there is some conflict in the testimony as to what was done. Charles T. Kelley testified that the petitioner did not take his place with the others until after eight of the cases had been disposed of; that he did not hear Officer Harrington “say anything after the first review of the men that was brought up”; that Officer Harrington gave no testimony after the petitioner had taken his place at the bar; that no other testimony was taken in any of the ten cases; and that in answer to the judge’s question: “What have you to say for yourself?” “The petitioner said he was working . . . Then the judge gave him thirty days, and petitioner said to him, ‘I am working on the “Daily News,” ’ and the judge said, ‘If you say anything more I will make it sixty days,’ and the incident was closed.” The petitioner gave this version: “The judge asked me what I was doing when I was arrested. I told him I was on my way to work and he said, ‘That’s enough; thirty days.’ I said, ‘If you will give me till to-morrow morning, I can get witnesses here to prove that I am working,’ and the judge said, ‘If you say anything more I will give you sixty-days. Sit down there.’ . . . Not to my knowledge, Harrington didn’t say anything while I was up. ... I can’t say positively, but I didn’t hear him. . . . The charge was not explained to me.” When Wells Fadden was asked, “What happened in the case of Earl Williams?” he answered: “They called his name. He come up, and the officer testified. ... He said he was a vagrant and had been hanging around Third and Market. That is all I heard. Q. What happened? A. ‘I find you guilty. County Jail, thirty days.’ . . . Williams asked the judge if he could put the case over until he could consult with his employer, and the judge says, ‘If you say anything more, I will give you sixty days,’ and he sat down.” This is Officer Harrington’s testimony: “Q. Were you sworn as a witness? A. Yes, sir. ... I said to the judge that I had arrested this man previously on six different occasions; that
[21]
I had a complaint from my captain about him begging on Third street, and that he was a dope user, and I had arrested him several times with fiends in the southern district, and it seems that before this time I had no special complaint about him, but this time I had a complaint by a business man on Third Street.” The judge’s testimony was as follows: “So far as the facts of the ease and the trial are concerned, I do not remember them. ... Q. Do you recall whether or not you administered an oath to Mr. Harrington before he testified in the case? A. As far as that as an independent fact I do not recall, except that I administer an oath when a witness goes on the stand. Q. Do you recall Officer Harrington testifying in that ease? A. I do. I recall very distinctly, but as to all his testimony, I don’t remember. Q. Do you recall anything as to his testimony about this man Williams? A. ... I will have to say no, I don’t. . . . Q. The statement made yesterday of what happened was this in substance: That ten cases of vagrancy were called, and the case of Earl Williams was the last on the list; that nine of these men were in the dock while Earl Williams was in the audience, having been released on bail; that as nine of the ten cases were called, nine men came out of the dock and were lined up in front and Earl Williams was making his way out of the audience up to join them; that you went through the list of these men and discharged all but one, who was sent back into the dock convicted; that no testimony whatever was asked for in connection with Earl Williams as he got before you, and you asked him what he had to say for himself, and he replied in substance that he was employed on the ‘Daily News,’ and you said, according to the testimony here, ‘That is enough to hear from you; thirty days. Now,-let’s see what the “News” can do for you,’ and he said, ‘Judge,’ something to the effect that might he have an opportunity to show that he was employed on the ‘News,’ and you said to him that if he said anything more it would be sixty days, and that practically all this took place in the courtroom as far as this particular case was concerned. ... A. I say that is absolutely not true, because I have never convicted men on such evidence. It is not my custom down there, and I have never convicted men on any such testimony.”
[22]
If it is to be insisted that what took place in. the police court constituted a trial according to the law of the land, then, in my opinion, ft may justly be said that there is very little left of our boasted constitutional guaranties that one accused of crime shall have a full and fair hearing before being deprived of life or liberty. I do not think that any one of the constitutional requirements of a trial was observed in this case. The petitioner was not asked whether he had counsel, if he desired the aid of counsel, or if he was ready to proceed to trial. No complaint was produced, there was no arraignment, no taking of a plea—unless the inquiry of the judge as to what petitioner had to say for himself can be said to call for a plea, and, except for what appears in the “docket sheet,” no “minutes” of proceedings on arraignment were entered. . Petitioner was not asked if he waived a trial by jury—one of his fundamental rights—and it is not pretended that it can be ascertained from the records of the police court whether he was proceeded against—if proceeded against at all—alone or in conjunction with the other men. He was not asked if he was ready to proceed to judgment, and no time was appointed therefor. He was not arraigned for judgment, and no inquiry was made whether he had any cause to show why judgment should not be pronounced upon him. On a charge of vagrancy evidence as to employment is always admissible, and yet petitioner’s request for a postponement, in order—as he claimed—to produce his employer as a witness, was denied. Whatever the judge said to the petitioner in this connection—and undoubtedly he made some remark after sentence was pronounced—I am satisfied that in no true sense was the petitioner given a “trial.”
Even if it be proper to hold in this connection that the testimony on behalf of the respondent may be aided by a presumption of regularity based on the record of the police court, nevertheless the only evidence of a record is the “minutes” in the “docket sheet,” which is a printed, unbound page with certain captions, opposite which appear the following entries:
“Offense: Vagrancy.
“Released or in custody: $25.00 bail.
“Plea: Not guilty.
“Arresting officers: Harrington and posse.
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“Proceedings: Guilty.
“Witnesses: Defendant and Harrington.
“Judgment: 30 days.”
Clearly, this record cannot be said to contain any “minutes” of the required statutory steps which I have enumerated, and it cannot be determined therefrom what did take place during the proceedings. The loose “docket sheet” may have some merit as a work-saving device, but it could have no other virtue.
If the petitioner were relying here on any one of the indicated departures from the prescribed mode of trial, it might be held that the police court merely erred in the exercise of jurisdiction, and that relief must be sought by appeal. But, in my opinion, even if the police court had acquired jurisdiction by the filing of a complaint, the failure to observe so many essentials of a trial would cause the jurisdiction to lapse and leave the police court without jurisdiction to render a judgment.
It might be assumed from the proceedings that in the case of a “drug addict” or “vagrant” it is not necessary to observe the constitutional requirements of a trial. There is no such discrimination in the law. Indeed, the greater the demoralization of the accused, the more need there is, it would seem, to conserve his rights. I do not think these proceedings should be given the sanction of this court or be accepted as a sufficient compliance with constitutional mandates. It is not enough to moralize on the showing that has been made before us; the proceedings should be condemned as a perversion of law.
I am strongly of the opinion that the petitioner should be discharged on the grounds, first, that no complaint had been filed, and, second, that there was no trial before judgment.