Sesslin

An information charged defendant and Frank Harper with seven counts of forgery and two counts of grand theft. Defendant and Harper waived trial by jury and stipulated that the trial judge decide the ease on the transcript of the preliminary hearing. The trial court found defendant guilty of one count of forgery and dismissed the other eight counts against defendant. Defendant appeals.

We hold that (1) an arrest warrant issued solely upon the complainant’s “information and belief” cannot stand if the complaint or an accompanying affidavit does not allege underlying facts upon which the magistrate can independently find probable cause to arrest the accused; (2) sections 806, 813, and 952 of the Penal Code do not authorize the issuance of warrants of arrest based solely upon complaints couched in the language of the charged offense and therefore do not violate the Fourth Amendment; (3) handwriting exemplars taken incidental to an illegal arrest are inadmissible; (4) the admission of defendant’s handwriting exemplars constituted prejudicial error.

On January 12, 1966, Police officer Hargraves signed a nine-page felony complaint. 1 On the same day, a judge of the municipal court…

I dissent.

Taking the majority conclusions seriatim, I would hold that (1) an arrest warrant based on the complainant’s information and belief is valid; (2) sections 806, 813, and 952 of the Penal Code have consistently and reasonably been interpreted in practice as authorizing the issuance of warrants of arrest based upon complaints couched in the language of the charged offense, and the sections are not violative of the Fourth Amendment; (3) handwriting exemplars are admissible regardless of whether they are taken before or after arrest and the nature of the arrest itself is irrelevant; (4) the admission of defendant’s handwriting exemplars was neither error nor prejudicial.

Penal Code section 806 specifically authorizes complaints sworn to on the information and belief of the affiant. As a result, a practice has developed among California law enforcement officers of preparing and signing complaints on information and belief, and in so doing the officers on occasion merely employ the language of the criminal statute allegedly violated. This has been deemed appropriate under accepted interpretations of Penal Code sections 806, 813, and 952. No California ease has held to the…