Opinion
No. 1 No. FAA
2-25-1955
PEOPLE of the State of California, Plaintiff and Appellant. v. ONE 1948 CHEVROLET CONVERTIBLE COUPE, LicenseP 46718, Engine433685, Defendant. Bank of America National Trust and Savings Association, a national banking association, Legal Owner and Respondent. Civ. 20432.
Edmund G. Brown, Atty. Gen., Donald D. Stoker and W. B. Thayer, Deputy Attys. Gen., for appellant. Samuel B. Stewart, San Francisco, Hugo A. Steinmeyer, and Joseph S. Potts, Jr., Los Angeles, for respondent.
PEOPLE of the State of California, Plaintiff and Appellant.
v.
ONE 1948 CHEVROLET CONVERTIBLE COUPE, License No. 1 P 46718, Engine No. FAA 433685, Defendant.
Bank of America National Trust and Savings Association, a national banking association, Legal Owner and Respondent.
Feb. 25, 1955.
Rehearing Denied March 21, 1955.
Hearing Granted April 25, 1955. *
Edmund G. Brown, Atty. Gen., Donald D. Stoker and W. B. Thayer, Deputy Attys. Gen., for appellant.
Samuel B. Stewart, San Francisco, Hugo A. Steinmeyer, and Joseph S. Potts, Jr., Los Angeles, for respondent.
VALLEE, Justice.
The People instituted this proceeding by filing a 'Notice of Seizure and Intended Forfeiture Proceedings' of an automobile, as provided by sections 11612 and 11613 of the Health and Safety Code. The notice alleged that the automobile had been seized pursuant to section 11611 of that code and that it 'was used to unlawfully keep, deposit, conceal, convey, carry or transport marihuana, and marihuana was unlawfully in the possession of an occupant thereof.' The notice was directed to Mrs. V. E. Phillips, the registered owner, to Ronald Leon Phillips, referred to as Phillips, 'who may have an interest in said vehicle,' and to Bank of America, the legal owner. Mrs. Phillips and Phillips defaulted. Bank of America answered. It denied that the vehicle was being used in violation of the narcotic laws and denied that any narcotic was unlawfully in the possession of any occupant thereof.
The cause was tried by the court sitting without a jury. The court found: Phillips had no interest in the vehicle; on August 3, 1953, at the time of the arrest of Phillips, Robert J. DeCordova, Don C. Clothier, and Merlin A. Dean, the vehicle was seized by police officers; at that time the vehicle was in the possession of Phillips, son of the registered owner; the vehicle was being used to transport marijuana on the person of Don C. Clothier, an occupant thereof; against the registered owner, only on the basis of the admissions of Phillips that he was aware at the time of the arrest and seizure of the presence of marijuana on the person of an occupant of the vehicle at the time of the seizure.
The court further found that as against the legal owner, Bank of America, the admissions of Phillips being inadmissible hearsay and there being no other sufficient evidence of the facts, Phillips had no narcotics in his possession at the time of the seizure of the vehicle, and had no knowledge whatever of the presence of any narcotic in the vehicle or in the possession or on the person of any occupant thereof.
Judgment was that the vehicle be forfeited to the state subject to the interest of Bank of America in the sum of $855.02, which was in excess of the value of the vehicle on the date of seizure, and that the vehicle be released to Bank of America in satisfaction of its lien against it. The People appeal.
A police officer testified that at the time of the arrest and seizure, Phillips, Clothier, DeCordova, and Dean were in the vehicle--Clothier behind the wheel, Phillips in the rear seat. The officers ordered them out of the car and over to the sidewalk. As they did so, Clothier dropped a can containing marijuana into the bushes. A small seed was found under the left-front seat and another under the floor mat in the rear. The seeds were not definitely identified as marijuana. A package of wheat-straw cigarette papers was found in Clothier's shirt pocket.
After the arrest and prior to the trial of the present proceeding, Phillips pleaded guilty in a criminal action to a charge of unlawful possession of marijuana. On the trial of this proceeding that plea was admitted in evidence against the registered owner and against Phillips. It was excluded as against Bank of America.
A police officer testified that 'at a later time after the arrest' he had a conversation with Phillips in the presence of Clothier, DeCordova, and Dean in which Phillips in effect stated he knew prior to and at the time the automobile was seized that marijuana was in the possession of Clothier. 1 The conversation consisted of declarations of Phillips which were narrative in character and a recapitulation of the events which preceded the actual arrest and seizure. The objection of Bank of America to the conversation was sustained. The testimony was admitted against the other defendants.
As ground for reversal the People contend it was prejudicial error to exclude as against Bank of America the testimony of the police officer as to the conversation with Phillips. We have concluded that the evidence was not admissible against Bank of America and that it was properly excluded.
In order that a vehicle be forfeited the People must establish not only that it was used to unlawfully transport a narcotic, or that a narcotic was unlawfully kept, deposited or concealed in the vehicle, or that a narcotic was unlawfully possessed by an occupant; but also that the person in control of the vehicle had knowledge during the time preceding the arrest and seizure that it was used to unlawfully transport a narcotic, or of the presence of a narcotic in the vehicle, or that a narcotic was possessed by an occupant. Health & Safety Code, § 11610; People v. One 1941 Buick Sport Coupe, 28 Cal.2d 692, 695, 171 P.2d 719. The parties are in agreement that Phillips was in control of the vehicle. The evidence established that marijuana was on the person of Clothier, an occupant of the vehicle, prior to and at the time of the arrest and seizure. In order to secure a judgment of forfeiture against Bank of America it was incumbent on the People, therefore, to establish that Phillips had knowledge prior to the arrest and seizure that marijuana was in the possession of Clothier.
The People advance three theories under any one of which they assert the declarations of Phillips to the police officer were admissible against Bank of America: 1. They were not hearsay. 2. They establish the state of mind of Phillips. 3. The proceeding is in rem and any evidence admissible against the res binds all claimants in the res.
It is well settled that hearsay evidence is inadmissible in the courts of this state over proper and timely objection unless it falls within one of the well-defined exceptions to the hearsay rule. (19 Cal.Jur.2d 108, § 378.) Generally a witness may testify only to facts which he knows of his own knowledge or which are derived from his own perceptions. Section 1845 of the Code of Civil Procedure reads: 'A witness can testify of those facts only which he knows of his own knowledge; that is, which are derived from his own p[er]ceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible.' (Italics added.)
Section 1870 provides that evidence may be given on a trial of '2. The act, declaration, or omission of a party, as evidence against such party; '3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto'.
A witness' testimony as to statements made by another, not the party to be bound thereby, is hearsay; and if offered to prove the fact asserted, is prima facie within the hearsay rule and inadmissible unless it comes under an exception to the rule. Code Civ.Proc. §§ 1850, 1870(7); In re Estate of Gaines, 15 Cal.2d 255, 256, 100 P.2d 1055. Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. 31 C.J.S., Evidence, § 192, p. 919. The fact that the statement or declaration is that of a co-defendant does not ordinarily alter the rule. Murphy v. Davids, 181 Cal. 706, 719-720, 186 P. 143; Dean v. Ross, 105 Cal. 227, 231; 38 P. 912; People v. Dowell, 204 Cal. 109, 115-116, 266 P. 807; People v. Jollet, 60 Cal.App.2d 245, 250, 140 P.2d 479; People v. Orloff, 65 Cal.App.2d 614, 619-620, 151 P.2d 288; People v. Curtis, 106 Cal.App.2d 321, 325, 235 P.2d 51. No person can be bound by the declarations of another who is not his agent and not expressly or by implication authorized to make them. 19 Cal.Jur.2d 184, § 433; see also Ryan v. Bank of Italy Nat. T. & S. Ass'n, 106 Cal.App. 690, 289 P. 863; Nishi v. Inoguchi, 116 Cal.App. 398, 401, 2 P.2d 864; McDanels v. General Ins. Co., 1 Cal.App.2d 454, 36 P.2d 829; Wills v. Price, 26 Cal.App.2d 338, 344, 79 P.2d 406; Fagan v. Union Pacific R. Co., 85 Cal.App.2d 583, 193 P.2d 776; Burns v. California Milk Transport, 89 Cal.App.2d 70, 200 P.2d 43; Elcox v. Hill, 8 Otto 218, 98 U.S. 218, 25 L.Ed. 103, 104.
A distinction is made between statements the making of which is in controversy and statements relating to the facts in controversy. The hearsay rule does not forbid the introduction of evidence that a statement was made, where the making of the statement is significant irrespective of the truth or falsity of its content. Werner v. State Bar, 24 Cal.2d 611, 621, 150 P.2d 892.
The contention that the statements are not hearsay is based on the untenable premise that they were not offered to evidence the truth of the matter asserted. The rule sought to be invoked is that where a substantive litigated fact is the speech of a person, one who heard the utterance may testify to it. The rule does not apply in the case at bar. The hearsay rule excludes extrajudicial deliberate utterances in terms affirming a fact. (2 Wigmore on Evidence, 3d ed., 482, § 459.) 'Where the declarant's conduct is an assertion such as a witness would make in testifying, whether in words or symbols used as a substitute for words, and the evidence is offered as tending to prove the truth of the matter asserted, all courts classify it as hearsay.' (Morgan, Hearsay, XXV Miss.L.J. 1, 7.)
The People appear to concede that the declarations of Phillips were inadmissible hearsay insofar as they tended to give rise to an inference that a narcotic was on the person of an occupant of the vehicle. However, it is urged, illogically, that the declarations were not hearsay since they tended to prove that during the material period of time Phillips had knowledge of the presence of a narcotic, and that they were not offered to prove the truth of the matter asserted. The testimony of the police officer as to his conversation with Phillips was not offered without reference to the truth of the matter asserted. It was not offered merely to prove that a conversation had taken place. See Gursey v. Campus Camera Shop, Inc., 98 Cal.App.2d 257, 219 P.2d 884. The fact in controversy was not whether Phillips spoke the words to the police officer. It was whether, prior to and at the time of the arrest and seizure, Phillips had knowledge that an occupant of the vehicle had marijuana in his possession. The declarations were not spontaneous exclamations. The testimony of the officer was offered to prove a fact--that Phillips knew prior to and at the time of the arrest and seizure that an occupant of the vehicle had marijuana in his possession. The court was asked to believe the fact that Phillips knew, prior to and at the time of the arrest and seizure, that an occupant of the vehicle had marijuana in his possession because he asserted it to be true, precisely as it would have been asked to believe Phillips' similar assertion if made on the stand. Such testimony is inadmissible hearsay. (6 Wigmore on Evidence, 3d ed., 234, § 1788.) The declarations have evidentiary value bearing on the declarant's knowledge during the material period preceding the arrest and seizure only on the hypothesis that the facts stated in the course of the declarations were at least substantially true, since it is only on that hypothesis that there can arise an inference that the declarant possessed knowledge during the period of time preceding the arrest and seizure of the presence of marijuana on the person of Clothier. The testimony of the officer was testimonial, i. e., evidence that the facts asserted were true. Phillips' knowledge at the time he made the declarations, which was some time after his arrest, was immaterial to any issue in the case.
The People cite Phillips v. Glazer, 94 Cal.App.2d 673, 211 P.2d 37, which is one of many cases stating the rule that when the very point in issue is whether a certain declaration was made, evidence of the making of the declaration, being material irrespective of its truth or falsity, is not hearsay and is admissible. Phillips v. Glazer is not in point.
The statements were declarations against the interest of Phillips. A declaration against interest must be against the interest of the party against whom it is offered. Pansini v. Weber, 53 Cal.App.2d 1, 5, 127 P.2d 288; Lewis v. Western Truck Line, 44 Cal.App.2d 455, 465, 112 P.2d 747. Generally a declaration against interest binds the party who made it; it is not admissible against and does not bind co-parties. Section 1848 of the Code of Civil Procedure reads; 'The rights of a party cannot be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one cannot affect another.'
Section 3520 of the Civil Code says: 'No one should suffer by the act of another.'
See People v. One 1950 Mercury Sedam, 116 Cal.App.2d 746, 751, 254 P.2d 666; Dean v. Ross, 105 Cal. 227, 231, 38 P. 912; Griffin v. Jacobsen, 17 Cal.App.2d 68, 70, 61 P.2d 350; People v. Walden, 75 Cal.App. 565, 568, 243 P. 25; People v. Zammora, 66 Cal.App.2d 166, 211-212, 152 P.2d 180; People v. Curtis, 106 Cal.App.2d 321, 325, 235 P.2d 51; 21 C.J.S., Evidence, § 318b, p. 1097. The fact that the declarations of Phillips, son of the registered owner, may be binding on the registered owner does not place the legal owner in a superior position to that afforded the registered owner, as argued by the attorney general.
We hold that as against Bank of America the declarations of Phillips were hearsay.
The People argue that the declarations fall within the 'state of mind' exception to the hearsay rule. The argument appears to be that declarations pertaining to a declarant's state of mind are admissible irrespective of when or under what circumstances they are made. There is nothing in the record to indicate that the declarations of Phillips were offered for the limited purpose of proving his state of mind. The rule the People seek to invoke is stated in Adkins v. Brett, 184 Cal. 252, at page 255, 193 P. 251, at page 252: '[W]hen the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person's declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.' (Italics added.)
The rule is stated in substantially the same language in In re Estate of Carson, 184 Cal. 437, at page 445, 194 P. 5, at page 9, 17 A.L.R. 239, to which the court added: 'Of course, if, as is frequently the case, and was the case here, the declarations include or are in the form of statements as to past events, the declarations are not competent as proof of such events, and if that is their only bearing, they are not admissible.'
In re Estate of Anderson, 185 Cal. 700, 198 P. 407, was a will contest on the ground of undue influence. Various declarations of the testatrix were offered in evidence. On review the court discussed them as follows, 185 Cal. at page 718, 198 P. at page 415: 'As to the declarations of the decedent admitted over the objection of the proponent, the contention that their admission was error must also be sustained as to some. Such declarations were hearsay, pure and simple. The only exception to the rule against hearsay within which they could come is the exception which admits declarations indicative of the declarant's intention, feeling, or other mental state, including his bodily feelings. But such declarations are competent only when they are indicative of the declarant's mental state at the very time of their utterance, and only for the purpose of showing that mental state. It follows from this that unless his mental state at that time is material to the issue under investigation, the declarations are not admissible, even though they do show his mental state at that time, not because they are not competent for that purpose, but because that purpose is not germane to the issue. * * * Now the declarations of the testatrix admitted in the present case were admitted on the theory that they were competent only to show her state of mind when uttered, and the jury were so charged. But although admitted for this purpose alone, most of the declarations do not come within the exception to the hearsay rule. As may be seen from the foregoing statement of the exception, in order that a declaration be within it, two things are requisite: (a) The declaration must be indicative of the mental state of the declarant at the very time of utterance, and (b) his or her mental state at that time must be material to an issue in the cause, i.e., have a reasonable evidentiary bearing upon such issue. 'The declarations in the present case are of three sorts: First, there are the declarations indicative simply of the fact that at the time they were made, some three months after the execution of the will, the testatrix had changed her mind in regard to the disposition she wished to make of her property, and regretted the will she had made. If that change of mind and regret had been material, evidence of the declarations would have been competent. The point is that the fact that she had changed her mind and regretted what she had done was not material. * * * 'The second sort of declaration is the one contained in the letter by the testatrix to her aunt to the effect that the will had been made at the latter's request. This was not properly admissible for a reason just the converse of that applicable to declarations of the first sort. The fact declared, that the will was made at the request of the aunt, did have a very direct bearing on the issue in the case, and was quite material. But the declaration of this fact was not admissible because it was merely a declaration as to a past event, and was not indicative of the condition of mind of the testatrix at the time she made it. It was therefore not within the exception to the hearsay rule. [In re] Estate of Jones, 166 Cal. 108, 117, 135 P. 288.' (Italics added.)
See also People v. Alcalde, 24 Cal.2d 177, 185-188, 148 P.2d 627; Bridge v. Ruggles, 202 Cal. 326, 330, 260 P. 553; In re Estate of Gregory, 133 Cal. 131, 135-138, 65 P. 315; In re Calkins' Estate, 112 Cal. 296, 300-303, 44 P. 577; In re Estate of Higley, 64 Cal.App. 664, 667-668, 222 P. 626; Stromerson v. Averill, 39 Cal.App.2d 118, 125, 102 P.2d 571; Sandoval v. Southern Cal. Enterprises, Inc., 98 Cal.App.2d 240, 244, 219 P.2d 928.
Declarations are admissible to show the present state of mind of the declarant, that is, the declarant's state of mind at the time the declarations are made, when state of mind is relevant. (6 Wigmore on Evidence, 3d ed., §§ 1729 et seq.) The cases hold that articulate declarations of pain or suffering must be as to a present, existing, bodily condition and that declarations as to past pain or suffering are not admissible; that they are hearsay, and do not fall within any recognizable class of admissible hearsay. In re Estate of James, 124 Cal. 653, 659-661, 57 P. 578, 1008. See cases collected 19 Cal.L.Rev. 234-240.
Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196, was a prosecution for murder. The defendant was charged with having poisoned his wife. The defense was that the wife had committed suicide. The government introduced the testimony of a nurse that two days after she became ill the deceased, in the absence of the defendant, had stated her husband had poisoned her. On appeal the government contended the declaration was admissible, not as evidence of the truth of what was said, but as showing a state of mind inconsistent with the presence of suicidal intent. Mr. Justice Cardozo, delivering the opinion of the court and holding the testimony inadmissible for that purpose, declared 290 U.S. 104, 54 S.Ct. 26, 78 L.Ed. 202: 'There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent. * * * Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.'
Application of the rule stated in the foregoing cases makes it clear that the declarations of Phillips were not admissible to prove his state of mind prior to the arrest and seizure. The marijuana was discovered on Clothier by the arresting officers at the time of the arrest and in the presence of Phillips and his companions. Since Phillips acquired knowledge at that time that Clothier possessed marijuana in the vehicle, the mere fact that his later declarations may have indicated that at the time he made them he had such knowledge had no probative value on the issue of his knowledge prior to the arrest. The declarations were indicative of Phillips' mental state at the time he made them, some time after the arrest. His state of mind at that time was not relevant to any issue in the case. The material issue was his knowledge, not at the time the declarations were made, but during the period preceding his arrest. The declarations were not indicative of and had no probative bearing on his mental state at the pertinent time preceding the arrest. Their only bearing was as proof of past events; as such, they were incompetent.
Under People v. One 1941 Buick Sport Coupe, supra, 28 Cal.2d 692, 171 P.2d 719, the People cannot justify a forfeiture of the vehicle as against an innocent legal owner merely by showing that the declarant had knowledge after the arrest that a narcotic had been in the possession of an occupant prior thereto, without proving that he also had such knowledge prior to the arrest and while he was in possession of the vehicle. The declarations were, therefore, not within the state of mind exception to the hearsay rule
Whitlow v. Durst, 20 Cal.2d 523, 127 P.2d 530, 532, relied on by the People, is not in point. The issue there was whether there had been a reconciliation between the deceased declarant and his wife. The declarations were of a person deceased. The court held that the intention of the parties was a material element in determining whether there had been a reconciliation and that declarations of the deceased made before and within 'a few days' after the alleged reconciliation were admissible as bearing upon his state of mind that there was no reconciliation. The issue there was whether the deceased intended to resume the marital relation. The decedent's declarations, at the time they were made, were relevant to an issue in the case.
The hearsay rule of exclusion is not a technical rule of evidence, as the attorney general argues. It is a sound rule established for the security of life, liberty, and property. It is one of the most basic in the law of evidence. The infirmities of hearsay are many. There is no assurance of reliability. It is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony. The declarant is under no responsibility to answer for the crime of perjury in making a willful falsification. The court and the jury are without opportunity to test the credibility of hearsay statements by observing the demeanor of the person alleged to have made them. Hearsay contains the possibilities of error or mistake caused by bias, failure to understand, or the imperfection of memory. The exclusion of hearsay evidence is based in part on the principle that a litigant in a court of justice has a right to have the witness whose statement is introduced face him in court so that his veracity may be tested by cross-examination under the sanction of an oath, and on the common experience of mankind as to the unreliability of relating by one person of statements made to him by another. 'The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of Cross-examination.' (5 Wigmore on Evidence, 3d ed., p. 3, § 1362.) The right to cross-examine the witness of the adverse party is vital to the administration of justice. Cross-examination 'is beyond any doubt the greatest legal engine ever invented for the discovery of truth.' (5 Wigmore on Evidence, 3d ed., 29, § 1367.) The right is of no avail if declarations of a person not present in court are to be admitted. As stated in section 1845 of the Code of Civil Procedure, the only exceptions to the hearsay rule are in those 'express cases' specified in the law--exceptions which time and experience have shown to be trustworthy. If, as the attorney general argues, hearsay evidence should be admitted, why not multiple hearsay?
The case at bar is a perfect illustration of the necessity for the hearsay rule. Two fundamental bases for the admission of extrajudicial declarations as exceptions to the hearsay rule, i. e., necessity and substantial guaranty of trustworthiness, are conspicuously absent with respect to the declarations in question. The statements to the police officer were those of an admitted felon. The circumstances under which they were made were not described by the officer. A fair inference is that they were made while Phillips was incarcerated. In a criminal prosecution, the declarations, which amounted to a confession, would not be admissible even against Phillips until an adequate foundation had been laid by proof that they were made freely and voluntarily, without duress, threat, intimidation, inducement, promise of leniency, immunity, or hope of reward. (19 Cal.Jur.2d 168, § 422.) Phillips was served with the Notice of Seizure and Intended Forfeiture Proceedings. There was no question of nonavailability. No explanation was offered below nor is any made here for the failure of the People to call Phillips, or any one of his three companions, as a witness. Nevertheless an attempt is made to get evidence in by the back door against Bank of America, an innocent party, without confrontation and without an opportunity to cross-examine.
The statement of the People that this is a proceeding in rem is true only in part. 'Although the suit by the state is nominally in rem against the vehicle itself, in reality it is directed against those who have property interests in the vehicle. The automobile is not itself an offender but has merely been used in the commission of an offense. The statute operates to transfer property rights in the automobile to the state, as a penalty against the owners for this misuse.' People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 302, 231 P.2d 832, 845. People v. One 1950 Mercury Sedan, 116 Cal.App.2d 746, 254 P.2d 666, is directly adverse to the People's contention that any evidence admissible against the res necessarily binds all claimants in that res. In that case, a forfeiture proceeding, the court observed, 116 Cal.App.2d at page 751, 254 P.2d at page 669; 'It is a fundamental rule that a declaration by a litigant contrary to his position in a law suit is admissible and is evidence which tends to prove the matter admitted. Code of Civ.Proc. § 1870, subd. 2; Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728. But the rule is subject to the qualification that the declaration is not binding upon co-defendants. Nishi v. Inoguchi, 116 Cal.App. 398, 2 P.2d 864.'
See also United States v. Packard Sedan, D.C., 23 F.2d 865. It is well settled that the hearsay rule applies in proceedings in rem. Probate proceedings: In re Estate of Russell, 189 Cal. 759, 210 P. 249; In re Estate of Scott, 55 Cal.App.2d 780, 131 P.2d 613; divorce proceedings: Turner v. Turner, 187 Cal. 632, 203 P. 109. The question in the case at bar is whether the declarations of Phillips were admissible against Bank of America. It is no answer to say they were admissible against the res.
The People argue that we are not bound by precedent to exclude the hearsay statements when offered to show knowledge. As we have seen, we are bound by precedent. Also, as we have seen, the statements were not offered to show knowledge at the time they were made. But even if we were not bound by precedent, to hold that the statements were admissible would not be a step forward but a step backward. The hearsay rule of exclusion is too vital and important a rule of evidence to be thrown overboard merely because the attorney general may think it expedient to do so. 2 In view of the argument of the attorney general the comments of the court in People v. Dillman, 37 Cal.App. 415, 174 P. 951, 952, are apropos. In that case, a proceeding by the state under the "Red Light Abatement Act" to enjoin the use of property for alleged immoral purposes, the court commented, 37 Cal.App. at page 421, 174 P. at page 953: 'But, however laudable the purposes of the act may be, no more in a case instituted under the provisions thereof than in any other class of cases should the established rules of evidence be relaxed. Indeed, a trial court, it seems to us, should be specially careful in the trial of such a case, for under said act the personal property of the person charged with keeping a place prohibited thereby may be confiscated and sold, and the right of the owner of the premises against which the action is directed (the action being one in rem as well as in personam to use the same for the period of one year may be foreclosed, thus depriving the owner of the income which may be derived from the property. Hence, while the people should not be unduly hampered in a proper effort to suppress the social evil which the act was designed to eradicate and should be accorded in the trial full legal opportunity to do so, the rules of evidence long established, and the wisdom and efficacy of which for eliciting the truth in forensic controversies involving disputed questions of fact have been well confirmed by the test of long experience, should not be twisted or distorted or departed from merely for the achievement of some special end.'
The court correctly found, as against the bank, that the People had failed to establish an unlawful use of the vehicle.
Affirmed.
SHINN, P. J., concurs.
WOOD, J., did not participate. --------------- * Opinion vacated 290 P.2d 538. 1 The testimony of the police officer as to the conversation with Phillips was: 'I questioned Phillips as to the--in fact, I questioned him generally as to who was the registered owner of the car. Phillips admitted he was. 'I asked him to relate what had occurred in regard to purchasing this marijuana. Phillips stated that he had met Clothier, who was down here on leave from a naval vessel which was moored at San Francisco,--which was moored in San Francisco Bay, and they had picked up the other party Dean, and DeCordova also was from another vessel in the same area, came down here to Long Beach with Clothier and he had agreed to drive them back to San Francisco in time to be on their vessel by 8:00 o'clock Monday morning, and that on the afternoon before the arrest they decided they would purchase some marijuana, they would take it to San Francisco and sell it, and that the four of them had pooled their funds and that he then drove the other three occupants in this car to Tijuana, and there on the street, he and Clothier contacted a Mexican and Clothier left with this Mexican, at which time he returned and had this marijuana. 'It was shown to them there and then Phillips was worried about the Customs officials finding it in his car. Clothier and DeCordova had their sailor uniforms in a parcel or package within the car; that they had decided to change into their clothes later on in the trip. They decided that the two boys would change into their sailor clothes and take the marijana and walk across the border ahead of the car. There would be less suspicion. 'They both agreed to it, and Clothier took the narcotics and he and DeCordova walked across the border. 'After waiting for sometime across the border, Dean came up to them on the United States side and told them not to get restless, that Phillips had sent him ahead to tell them he was in the line. After Phillips crossed the line, he picked up the suspects and proceeded north back to Long Beach. 'At a place outside of San Diego they stopped at a service station and Clothier got out of the car and went to the rest room at which time he came back and Phillips was driving, and after they left this rest room and got about two miles, Clothier broke out a marijuana cigarette which he told them he had rolled in the washroom and lit it and passed it around to all four of them. 'At a place--they weren't certain whether it was in the City limits of Long Beach or on the border, they stopped for a cup of coffee or sandwich. When they got back in the car, Phillips, having driven, Clothier offered to drive, and he permitted Clothier to drive the car back to Long Beach, and Clothier did drive it, and they came back to the area which is north of where they were arrested, and which had been the original point of departure, and none of their other companions were around, and they drove around the block and stopped, at which time the police car came up to them and found them and shook them down as they took them out of the car.' 2 In Englebretson v. Industrial Acc. Comm., 170 Cal. 793, at page 789, 151 P. 421, at page 423, Mr. Justice Lucien Shaw wrote: 'The unreliability of a relation by one person of statements made to him by another is so well known that it has become customary and is considered necessary for courts, in cases where oral admissions of a party are proved against him, to instruct the jury that they must view such admissions with caution, because of the tendency of witnesses to make perverted or inaccurate reports. We have many decisions of courts of the highest standing declaring the importance and substantial character of the rule against hearsay testimony. It has been said that the fact 'that this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible. * * * The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well established rule, the value of which is felt and acknowledged by all.''