This is not an appeal from a judgment of conviction following a trial. It is a proceeding to prohibit the respondent court from trying the charges against petitioner upon the theory that said court has no jurisdiction. The claim of lack of jurisdiction is based upon the theory that there was no competent evidence against petitioner at the preliminary examination, and therefore petitioner was held to answer without “reasonable or probable cause.” (Pen. Code, § 995.) The claim that there was no competent evidence against petitioner is in turn based solely upon the theory that all the incriminating evidence introduced against petitioner at the preliminary examination became incompetent because the committing magistrate allegedly erred in denying petitioner the right to ascertain from the police officers the identity of their informers. The majority opinion sustains all of petitioner’s claims and orders the issuance of a writ of prohibition. I cannot agree.
It is conceded that there was introduced at the preliminary hearing uncontradicted evidence showing that petitioner was guilty as charged of possessing narcotics in violation of section 11500 of the Health and Safety Code. At the time of his arrest, he had narcotics both on his .person and in his apartment. When questioned about the black metal box which he had in his pocket and which contained narcotics, he said: “You have got me. This is mine. This is for my own use. ’ ’
If the above-mentioned testimony had been introduced before a grand jury and petitioner had thereafter been charged by indictment, there would be no question concerning the jurisdiction of the superior court to proceed with the trial of petitioner. In that ease, petitioner could not have complained because he had not been present when the testimony was taken before the grand jury and, of course, he would have had no opportunity to cross-examine the witnesses or to demand the disclosure of the names of any informers. But here the majority denies the existence of *825the jurisdiction of the superior court to proceed with a trial on the merits merely because of the claimed error on the part of the committing magistrate in refusing to compel the disclosure of the identity of the informers at the preliminary hearing. I do not believe that such error, if any, at the preliminary hearing should be dignified with jurisdictional significance in any case; and that therefore the writ of prohibition, which is strictly a jurisdictional writ (Code Civ. Proc., § 1102), should be denied.
I find no constitutional problem, and certainly no jurisdictional problem, arising from the alleged error at the preliminary hearing. Such preliminary hearings are not clothed with the formalities of a trial on the merits, and the only grounds for setting aside an indictment or information, or for issuing a writ of prohibition, are those specified in sections 995 and 999a of the Penal Code. Mere error in admitting or refusing to admit evidence at the preliminary hearing is not one of the grounds so specified. In this connection, Costello v. United States, 350 U.S. 359 [76 S.Ct. 406,100 L.Ed. 397], while involving a grand jury indictment, points out the distinction between proceedings on the trial and those leading up to the filing of the charges. It was there said at page 364: “In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict.” The court declared, however, on page 362: “But neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act.” With respect to other preliminary proceedings, attention may be directed to Hurtado v. California, 110 U.S. 516 [4 S.Ct. 111, 292, 28 L.Ed. 232] ; Lem Woon v. Oregon, 229 U.S. 586 [33 S.Ct. 783, 57 L.Ed. 1340]; Gaines v. Washington, 277 U.S. 81 [48 S.Ct. 468, 72 L.Ed. 793] ; People v. Bird, 212 Cal. 632 [300 P. 23].
In reaching the foregoing conclusion that the writ of prohibition should not issue here, I have assumed, solely for the purpose of the above discussion, that the committing magistrate may have erred in his rulings at the preliminary hearing. I now turn to the question of whether there was any such error.
In the present case, the two counts of the information charged “mere possession” by petitioner of two different types of narcotics on the day of his arrest. No informer was “present with the accused” at the time of the alleged offensesj and no informer was a “participant” in either of *826the offenses of “mere possession” with which petitioner was charged. Under these circumstances, the case of Roviaro v. United States, 353 U.S. 53 [77 S.Ct. 623, 1 L.Ed.2d 639], clearly indicates that there was no error in the rulings of the committing magistrate. The opinion in the Roviaro case is discussed at some length in my concurring and dissenting opinion in People v. McShann, Crim. 6243, ante, p. 802 [330 P.2d 33], this day filed, and such discussion need not be repeated here.
In conclusion, I desire to make one further observation concerning this proceeding. The evidence hereinabove summarized showed without contradiction that petitioner had committed, and was committing, the felony of possession of narcotics at the time of his arrest. I am therefore of the opinion that his arrest was lawful, as “A peace-officer may . . . without a warrant, arrest a person: 2. When a person arrested has committed a felony, although not in his presence.” (Pen. Code, § 836.) I am further of the opinion that the search which produced the narcotics was a reasonable search as an incident of such lawful arrest. My views on this subject are set forth at some length in my dissenting opinion in Badillo v. Superior Court, 46 Cal.2d 269, at pages 273-278 [294 P.2d 23]. I adhere to those views and believe that this court should reexamine the decision in that case. Under the circumstances before us, the question of where the arresting officer here may have obtained his information is wholly immaterial in determining that the arrest was lawful, and that the search was reasonable as an incident of such lawful arrest.
The majority express the fear that any contrary holding here “would destroy the exclusionary rule.” I cannot agree. This court has committed itself to the task of establishing “workable rules” to supplement the exclusionary rule and to the avoidance of “needless refinements and distinctions” and “needless limitations on the right to conduct reasonable searches and seizures.” (People v. Cahan, 44 Cal.2d 434, 450-451 [282 P.2d 905, 50 A.L.R.2d 513].) In my view, the majority opinions in this ease and in the Badillo case fall short of that commitment, and on the contrary, contain within themselves the seed of the "destruction of the exclusionary rule. The rules set forth in said opinions appear to me to have the effect of defeating rather than promoting the ends of justice, and thus inviting the destruction of the exclusionary rule through legislative nullification.
*827In summary, and without regard to any questions of the desirability of reexamining the decision in Badillo v. Superior Court, supra, I am of the opinion that, even assuming error in the challenged rulings, no constitutional or jurisdictional question is presented here; that under the decision in Roviaro v. United States, supra, there was no error in the ruling of the committing magistrate; that there was competent, uncontradicted evidence to sustain the order holding the petitioner to answer; and that the superior court has jurisdiction to proceed with the trial.
I would therefore deny the petition for a writ of prohibition.
Shenk, J., and McComb, J., concurred.
Respondent’s petition for a rehearing was denied October 28, 1958. Shenk, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.