Respondent has filed a motion to augment the record herein by adding thereto the minutes of the Municipal Court of Los Angeles Judicial District in Case No. 143900 entitled People of the State of California v. Henry Victor Prewitt, and to further add to the record on appeal a certified copy of the complaint filed in the aforesaid court on March 3, 1958, wherein respondent was accused of violating Section 337a of the Penal Code. The motion is accompanied by an affidavit of Russell E. Parsons, Esq., one of counsel for respondent, wherein it is set forth that the defendant named in the municipal court action is respondent herein, and that the charge contained in the indictment in the instant case is the identical charge contained in the aforesaid complaint filed in the municipal court. That after a preliminary examination, at which time substantially the same evidence was presented to the judge presiding at said preliminary examination, said case was dismissed by reason of the fact that the evidence had been unlawfully obtained, in violation of the rules laid down in the case of People v. Cahan.
We are satisfied that respondent’s contention that the doctrine of res judicata is applicable to the instant proceeding cannot be sustained and that the records of the municipal court are not germane to the issues presented on this appeal. While it is true, as urged by respondent, that the doctrine has been applied to criminal cases in this state, it was always under different circumstances. In effect, respondent argues that after an accused is discharged at the preliminary examination, unless new and different evidence is offered before a grand jury or another committing magistrate, the decision of the magistrate becomes, as it were, the law of the case and is res judicata. The same contention was advanced in the case of People v. Joseph, and rejected. The factual background present in the case just cited is strikingly similar to that in the case at bar and we are persuaded that the holding in that case is determinative of respondent’s contention herein. In the Joseph case, supra, following the dismissal of two complaints filed against the accused, the same evidence was presented to the grand jury and an indictment was returned. In that case this court said: ‘We are satisfied that the doctrine of res judicata applies to prevent the relitigation of issues determined by a final judgment in a prior action between the same parties. In the case now engaging our attention, however, appellant’s argument for application of the doctrine of res judicata fails for two reasons. First, the orders of dismissal entered by the municipal court judges were not appealable. Secondly, in an unbroken line of decisions in this state it has been held that the results of proceedings prior to trial in criminal actions are not res judicata.’
Respondent relies heavily upon the case of Coffey v. United States, which was a case involving a judgment of acquittal in a criminal prosecution for a violation of Internal Revenue laws, and the court held it was conclusive in favor of the defendant as claimant of the property involved in a subsequent suit in rem, when, as against him, the existence of the same act or fact involved in a criminal prosecution is in issue as a cause for the forfeiture of such property. That case, however, in our opinion, does not aid respondent, because therein it was held that, ‘The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, in bar, or as evidence, conclusive, between the same parties, upon the same matter directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. In the present case the court is the same court, and had jurisdiction, and the judgment was directly on the point now involved, and between the same parties.’ In the case here under consideration we do not have a prior judgment by a court of concurrent jurisdiction. As was said in People v. Brite: ‘A justice of the peace, when acting as a court, is given the power of trying causes and rendering judgments of imprisonment upon conviction, but, when acting as a magistrate in the preliminary examination of a person accused by deposition of a public offense, he has no such power. The full limit of his power is, after examination, to hold the accused to answer at trial, unless from the examination it appears that no offense has been committed or there is not sufficient cause to believe the defendant guilty of a public offense, in which event the magistrate must order the accused discharged.’
An examination of other cases cited by respondent reveals nothing in conflict with what we have herein stated.
The motion to augment the record is denied. The order from which this appeal was taken is reversed.
