People v. Weger

FLEMING, J.

I concur.

The Los Angeles County Bar Association has as its motto a saying of Theodore Roosevelt that “Every man owes some of his time to the upbuilding of the profession to which he belongs.” I think a comparable duty rests on the citizen at large of whom it can be said, “Every citizen owes some *604 of his time to the tranquility of the society to which he belongs. ’ ’ The legal duty of the citizen to assist public authority in preserving the peace has been firmly established for hundreds of years and is manifest in such obligations as the duty to assist the posse comitatus, to join the hue and cry, to expose treason, and to disclose the commission of known felonies to proper authority. 1 (Gov. Code, §§ 26600, 26602, 26604; Pen. Code, §§ 38, 150, 839; 18 U.S.C.; §§ 4, 2382.)

I think it well within the scope of this duty to require a citizen to identify and account for his presence to public authority when he is abroad at 2:30 in the morning under circumstances where the public safety demands such identification. In so doing the citizen makes a positive contribution to the tranquility of the neighborhood by releasing a peace officer for the performance of his duties elsewhere.

This duty to identify and account I find substantially similar to the duty of a motorist on the highway to identify himself and establish his right to be on the highway, to demonstrate his condition to exercise that right safely, and to report accidents involving property damage, personal injury, or death. (Yeh. Code, §§ 2804, 12951, 20002, 20003, 20004, 40302, subd. (a).) It is comparable to the duty to identify and account which we fulfill at the demand of the building superintendent when we enter our offices late at night, which we satisfy at the demand of customs and immigration inspectors when we return from overseas, which we carry out at the demand of the Director of Internal Revenue when we file our income tax returns. These inquisitions, oral and written, sometimes inconvenient, sometimes vexing, are part of the price we pay to insure domestic tranquility and promote the general welfare.

*605 The theory that one owes no duties to one’s neighbors and is under no obligation to render even small assistance to the public order by identifying and accounting for oneself and thus releasing a peace officer for other work, derives from the exaggerated and extreme individualism of another era, an individualism reflected in the statement of a Vanderbilt, “The public be damned,’’ and similarly reflected in the strictures of a Proudhon against all government. 2 The theory is essentially anarchistic and hostile to all law, and it implies that the relationship of the citizen to public authority is comparable to that of the inhabitants of a conquered province to an army of occupation, who recognize no legal obligations owed to their temporary masters and whose relationship with them is based entirely on force. But in a society based on law the pure theory of individualism must defer to a reasonable accommodation between private privilege and public interest. When the public safety reasonably demands identification at 2:30 in the morning, the citizen has no constitutional right to remain anonymous.

With respect to that provision of the Fifth Amendment which states that no person shall be compelled in any criminal case to be a witness against himself, its definition of a criminal case has never been extended to include general investigation. (People v. Perez, 65 Cal.2d 709, 716-717 [ 56 Cal.Rptr. 312 , 423 P.2d 240 ].) The position of a person under general investigation is comparable to that of a witness before any judicial, legislative, or administrative officer. If the witness feels that answers to questions put to him will tend to incriminate him he may claim the privilege against self-incriminatian. If the privilege has been well claimed, he is entitled to remain silent. (United States v. Burr, 25 F.Cas.No. 14,692(e), (Marshall, C.J.).) But until the privilege has been validly claimed, his civic duty to identify and account continues in force. (Sullivan v. United States, 274 U.S. 259, 263-264 [ 71 L.Ed. 1037, 1039, 1040 , 47 S.Ct. 607 , 51 A.L.R. 1020 ] *606 (Holmes, J.); Communist Party v. Control Board, 367 U.S. 1, 105-110 [ 6 L.Ed.2d 625, 694, 697 , 81 S.Ct. 1357 ] (Frankfurter, J.).)

I conclude that Penal Code, section 647, subdivision (e), draws on civic duty without unduly infringing individual right, and is therefore constitutional.

"Ever since the days of hue and cry, it has been the duty of a man, who knows that a felony has been committed, to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice. In the thirteenth century it was his duty ‘ to raise hue and cry,’ that is to say, he had to report to the sheriff of the county or his officer or to the constable of the town: whereupon it was the duty of that officer to levy hue and cry, that is, to shout aloud calling on all able-bodied men over the age of 15 to pursue the offender and arrest him: and it was their duty to join in the pursuit.” (Lord Denning, J., Sykes v. Director of Public Prosecutions, [1962] A.C. 528, 555.)

"Sir Francis Bacon, in the Countess of Shrewsbury’s Trial, 2 How. St.Tr. 769, 778 (1612) : 'You must know that all subjects, without distinction of degrees, owe to the king tribute and service, not only of their deed and hand, but of their knowledge and discovery. If there be anything that imports the king’s service, they ought themselves undemanded to impart it; much more, if they be called and examined, whether it be of their own fact or of another’s they ought to make direct answer.’ ” (8 Wigmore on Evidence (3d ed.) § 2190, pp. 66-67.)

“ To be governed is to be watched, inspected, spied on, regulated, indoctrinated, preached at, controlled, ruled, censored, by persons who have neither wisdom nor virtue. It is every action and transaction to be registered, stamped, taxed, patented, licensed, assessed, measured, reprimanded, corrected, frustrated. Under pretext of the public good it is to be exploited, monopolized, embezzled, robbed and then, at the least protest or word of complaint, to be fined, harassed, vilified, beaten up, bludgeoned, disarmed, judged, condemned, imprisoned, shot, garroted, deported, sold, betrayed, swindled, deceived, outraged, dishonored. That’s government, that’s its justice, that’s its morality! ’ ’ (Pierre Proudhon, quoted in Tuckman, The Proud Tower, p. 65.)