# Coverstone v. Davies

> California Supreme Court · January 25, 1952 · 38 Cal. 2d 315

URL: https://www.frixlaw.com/law-library/cases/9550245

## Case

- **Full name:** WARREN COVERSTONE, a Minor, Etc., Appellant, v. L. N. DAVIES, Individually and as Deputy Sheriff, Etc., Et Al., Respondents; WILLIAM L. MOCK, a Minor, Etc., Appellant, v. L. N. DAVIES, Individually and as Deputy Sheriff, Etc., Et Al., Respondents; ROLLA D. MOCK Et Al., Appellants, v. L. N. DAVIES, Individually and as Deputy Sheriff, Etc., Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** January 25, 1952
- **Citations:** 38 Cal. 2d 315; 239 P.2d 876; 1952 Cal. LEXIS 175
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Spence, Carter, Schauer
- **Cited by:** 131 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9550245

## How later opinions describe it (automated extraction)

- holding that there may be no cause of action for malicious prosecution against “anyone other than the person directly aggrieved”

## Opinion text

CARTER, J.
I dissent.
The majority of this court is, apparently, determined that no action for false arrest, false imprisonment or malicious prosecution shall lie against anyone connected with the enforcement of the law (see White v. Towers, 37 Cal.2d 727 [ 235 P.2d 209 ]). To achieve this result it is, of course, necessary here, as in the White case, to assume certain facts which do not appear of record. In the White ease it was necessary for the court to assume that the one making the arrest and filing the charges was a deputy of the Fish and Game Commission. Without this assumption, the defendant there would have had no authority to make or procure an arrest for an alleged violation of the Fish and G-ame Code. In the instant case, a different assumption is made, but in my opinion, one on which the affirmance of the judgments of nonsuit rests.
The young men in the instant case were arrested and charged with a violation of section 407 of the Penal Code. That section provides that: “Whenever two or more persons assemble together to do an unlawful act, and separate without doing or advancing toward it, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlaw;ful assembly.” The record shows that a group of students were gathered near the intersection of two streets in Los Angeles. The record is not so clear as the majority would have us believe that “their purpose was to view a ‘hot-rod’ race.” These boys were found not guilty by a jury of the misdemeanor with which they were charged pursuant to the above Penal Code section. It appears to me that only two implications *325 can be drawn from the verdict: That they were not assembled to do an unlawful act or that the lawful act for which they were assembled was not being carried forward in a “violent, boisterous, or tumultuous manner” as provided in the Penal Code. It is undisputed that the boys were present together with a number of other students so that there was an assembly of two or more persons. It is stated in the majority opinion that “Since ... a peace officer may lawfully made an arrest for a public offense committed or attempted in his presence (Pen. Code, § 836), the critical question presented in this ease is whether the acts done in the presence of the arresting officer justified the arrests being made without a warrant.
“It is not disputed that the group was assembled to view a ‘hot-rod’ race. Such illegal purpose renders the action of the group knowingly participating therein an unlawful assembly within the meaning of section 407 of the Penal Code.” (Italics added.) But the jury, by its verdict, found no illegal purpose. There is no evidence that these boys participated in the hot-rod race, or that they even knew that there was going to be one at that time and place. In People v. Palmer, 76 Cal.App.2d 679, 685 [ 173 P.2d 680 ], it was said: “. . . it is well settled that the question of whether or not a person who is shown to have been present at the time and place of the commission of a crime has aided and abetted therein is one of fact for the jury to decide from all the circumstances proved.” And the jury here returned a verdict of “not guilty.” The mere fact that the boys were present when the officers arrived does not constitute the existence of such circumstances as would cause a reasonable person to believe that a crime was being committed in the presence of the officers so as to warrant an arrest without a warrant. Under the holding in this ease, an officer could arrest any innocent bystander who unfortunately happened to be passing by the scene of any crime, imprison him, and then say that because he happened to be in the vicinity, there was probable cause to believe him guilty. It is specifically provided (Pen. Code, § 836) that a peace officer may arrest a person, without a warrant “for a public offense committed or attempted in his presence.” These boys were standing on the bank by the side of the road when they were arrested. One who is merely a spectator at the scene of a crime, who does not participate therein, nor aid or abet its commission, cannot be held as a party to it. (People v. Woodward, 45 Cal. 293 [ 13 Am.Rep. 176 ].)
*326 It seems that the majority feels that the arrest and imprisonment were lawful because the boys were assembled at that particular spot for an illegal purpose. In so doing, the verdict in the criminal case is, by implication, set aside. For there the verdict showed that there had not been an illegal purpose in the assemblage of the young people.
So far as the imprisonment is concerned, after the boys were arrested without a warrant, the plaintiffs’ evidence shows that they were not taken before a magistrate prior to incarcerating them and that there were no orders of commitment, which conduct of the officers was contrary to sections 145 and 849 of the Penal Code. Retention of prisoners for an unnecessary period of time without a magistrate’s commitment order, constitutes false imprisonment. (Gomez v. Scanlan, 155 Cal. 528 [ 102 P. 12 ].)
There is also evidence in the record from which it could be found that the complaint was filed by the police officers against these plaintiffs to avoid the possibility of lawsuits for false arrest and imprisonment. Mr. Mock, father of one of the plaintiffs, testified that Captain Cook, one of the defendants here, called him to his office and remarked that a complaint had not been filed against the boys but that unless they (the police) were released from liability they would have to do so to protect themselves. In Franzen v. Shenk, 192 Cal. 572, 580-583 [ 221 P. 932 ], it was said: “. . . if it appears anywhere during the trial . . . that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determination of the question of whether or not the defendant had probable cause.
■ “. . . the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. ... If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused.” Viewing the evidence in the light most favorable to plaintiffs and disregarding conflicts as this court must do in testing the propriety of nonsuits, it appears to me that there was ample evidence from which the jury could have found that these defendants did not themselves believe that they had either probable cause or reasonable grounds for the *327 arrest, imprisonment or prosecution of these plaintiffs. No officer should be permitted to bring unwarranted, unfounded charges against any individual for the purpose of rendering himself immune from liability.
I am of the opinion noAV, as I Avas when I wrote my dissent in White v. Towers, supra, that the protection of individual rights should be zealously guarded from unwarranted police action and that the privilege of police immunity should not be so extended that it protects any laAV enforcement officer who chooses to make an arrest on mere suspicion or conjecture.
The majority decision in this case is another step in support of the police state philosophy which the majority of this court has approved and sanctioned in several recent decisions (see People v. Rochin, 101 Cal.App.2d 140 [ 225 P.2d 1 ], reversed by U. S. Supreme Court, January 2, 1952, see Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. ——] ; White v. Towers, 37 Cal.2d 727 [ 235 P.2d 209 ]; People v. Gonzales, 20 Cal.2d 165 [ 124 P.2d 44 ]), and demonstrates the absurdity of the argument that a person Avhose rights have been violated by a peace officer may obtain redress against the offending officer. (People v. Gonzales, 20 Cal.2d 165, 169 [ 124 P.2d 44 ].)
I would reverse the judgment as to all defendants.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9550245. Public record. Not legal advice.