Renk v. Municipal Court

BURKE, P. J. This is an appeal from the denial of a writ of prohibition which sought to restrain respondent from proceeding to try petitioner for a violation of the Vehicle Code.

Appellant was arrested on February 15, 1962, without a warrant and taken before a judge of the Municipal Court of the Whittier Judicial District and thereafter on the same day was charged with a violation of subdivision (a), section 23102, Vehicle Code, misdemeanor drunk driving. On the same day petitioner entered a plea of not guilty and was released on bail with a jury trial scheduled for March 7, 1962. On March 23, 1962, petitioner filed a notice of motion to dismiss the case for want of jurisdiction. This motion was denied, whereupon appellant filed a petition for writ of prohibition in the superior court from the denial of which petition appellant appeals.

The basis for appellant’s contention that the municipal court is without jurisdiction to proceed to try him is that the complaint filed against him was not filed by the arresting officer. The complaint was actually signed by a complainant other than the arresting officer. Petitioner contends that section 40306 of the Vehicle Code requires that “. . . the arresting officer shall file with the magistrate a complaint stating the offense with which the person is charged”; and that this requirement is mandatory. Appellant asserts that without a complaint being filed in strict compliance with the provisions of this section the court is without jurisdiction to proceed to try him. These contentions are without merit.

It should be pointed out that the section in question merely imposes a duty on the arresting officer to “file” a complaint. It does not require that the complaint be signed by him. The complaint as filed does not indicate that it was not filed by the arresting officer. It does bear the subnote: “Arresting agency; Sheriff.” The end sought to be accomplished by the section is that a proper complaint be filed stating the offense with which the arrested person is charged. This was done and appellant makes no contention that the complaint [134]filed against Mm did not correctly set forth the basis for the arrest or that his arrest was illegal.

Section 40306 was not intended to enforce a constitutional requirement nor is it substantive. It is only statutory and procedural. The same legislative body that created the requirement also enacted section 960, Penal Code, providing that “ [n]o accusatory pleading is insufficient” because of a defect in form absent “prejudice.” The Legislature has also required appellate courts in section 1258, Penal Code, to disregard “technical errors or defects.”