I dissent.
I agree with all of the opinion except that portion which holds that admissions or confessions of a defendant are admissible against him even though they are obtained while he is being illegally detained contrary to section 825 of the Penal Code, quoted in the majority opinion. I believe that we should follow the federal rule as announced by the United States Supreme Court (Upshaw v. United States, 335 U.S. 410 [69 S.Ct. 170, 93 L.Ed. 100]; McNabb v. United States, 318 Ú.S. 332 [63 S.Ct. 608, 87 L.Ed. 819]). One of the reasons for the provisions that a person arrested be promptly taken before a magistrate such as section 825 of the Penal Code is: “. . . to check resort by officers to ‘secret interrogation of persons accused of crime.’ ” (Upshaw v. United States, supra, 335 U.S. 410, 412.) In McNabb v. United States, supra, 318 U.S. 332, 343, the court said after pointing out the rule that a person must be promptly charged after arrest: “The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone *12prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments óf the. criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that- the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard—-not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find .their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument' of crime detection. A statute carrying" such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.” And in the same vein William Wicker, Dean of the University of Tennessee College of Law, says: “The objectives of prompt-arraignment statutes include giving the suspect a preliminary hearing before a committing official, informing him as to his constitutional privilege of remaining silent, and affording him an opportunity to obtain counsel and secure bail. Holding the suspect incommunicado furnishes the setting most favorable for obtaining a confession. A.high percentage of improperly induced confessions'occur while the suspect is being held"‘on ice’ in violation of arraignment statutes. This kind of-violation of a duty towards a suspect involves very little risk from the standpoint of the lawless police officer. A prosecuting attorney will very seldom, if ever, use a confession obtained by his investigating officer and then prosecute the officer for illegally obtaining the confession. Furthermore, even a successful criminal prosecution gives no redress to the victim. There are also obvious practical obstacles to a convicted criminal’s successfully maintaining a civil suit for damages against an officer who illegally detained him and thereby obtained the" evidence’ tó convict *13him. If the victim dares to bring á civil action, he is not only faced with publicity and the risk of wasting time and money, but also with the risk of creating such a degree of ill-feeling between himself and the police that he may have reason to fear police retribution. If the victim' obtains a judgment, the damages may be nominal. Even if the victim obtains a substantial judgment, it often cannot be collected out of a police officer’s meager resources.” (5 Vand.L.Rev. 507, 511.)
Our statutes (Pen. Code, §§ 145, 825) make it mandatory that a person arrested be taken before a magistrate without unnecessary delay, in no case less than two days and an officer violating the section is subject to imprisonment in the county jail not exceeding' six months or fine not exceeding $500 or both. (Pen. Code, §§ 19, 145.) Unless admissions or confessions are excluded when obtained in violation of those provisions they will have little force. The situation is not different than the unlawful search and seizure cases (People v. Cahan, 44 Cal.2d 434 [282 P.2d 905]). The distinction suggested by the majority opinion, that is, that an admission obtained during illegal detention is not necessarily the product of the illegal detention while the goods unlawfully seized are á necessary product of the illegal seizure, fails to take into account that the purpose of the speedy'taking of a prisoner before a magistrate is to avoid confessions or admissions before a person is advised of the charges against him and his right to counsel, etc. Necessarily embraced within that purpose is the thought that such admissions obtained during illegal restraint will be coerced. Moreover, the purpose being as heretofore stated the Legislature has decided by making the requirement (Pen. Code, § 825) that admissions so obtained are necessarily a product of the illegal detention and the coercion inherent therein.
It appears to be the settled rule' both in California and throughout the United States that where a statute provides that certain conduct shall be penalized, rights assertedly based oh such conduct are void, of no effect, and hence unenforceable, even though the statute does not specifically so declare. (City of Oakland v. California Const. Co., 15 Cal.2d 573 [104 P.2d 30]; Berka v. Woodward, 125 Cal. 119 [57 P. 777, 73 Am.St.Rep. 31, 45 L.R.A. 420]; Adams v. Minor, 121 Cal. 372 [53 P. 815]; Meyer v. City of San Diego, 121 Cal. 102 [53 P. 434, 66 Am.St.Rep. 22, 41 L.R.A. 762]; Visalia Gas & E. L. Co. v. Sims, 104 Cal. 326 [37 P. 1042, 43 Am.St.Rep. 105]; Morill v. Nightingale, 93 Cal. 452 [28 P. 1068, 27 *14Am.St.Rep. 207]; Gardner v. Tatum, 81 Cal. 370 [22 P. 880]; Santa Clara Valley Mill & Lbr. Co. v. Hayes, 76 Cal. 387 [18 P. 391, 9 Am.St.Rep. 211]; Swanger v. Mayberry, 59 Cal. 91; Raymond v. Bartlett, 77 Cal.App.2d 283 [175 P.2d 288]; Salada Beach etc. Dist. v. Anderson, 50 Cal.App.2d 306 [123 P.2d 86]; County of Marin v. Messner, 44 Cal.App.2d 577 [112 P.2d 731]; Miller v. City of Martinez, 28 Cal.App.2d 364 [82 P.2d 519]; City of Los Angeles v. Watterson, 8 Cal.App.2d 331 [48 P.2d 87]; Hobbs, Wall & Co. v. Moran, 109 Cal.App. 316 [293 P. 145]; County of Shasta v. Moody, 90 Cal.App. 519 [265 P. 1032]; Noble v. City of Palo Alto, 89 Cal.App. 47 [264 P. 529]; Nielson v. Richards, 75 Cal.App. 680 [243 P. 697]; Stockton Plumbing etc. Co. v. Wheeler, 68 Cal.App. 592 [229 P. 1120].) It should follow from the foregoing that since the detention here was in violation of express statutory authority, anything obtained by the prosecution from the defendant while subjected to such unlawful detention could not be relied upon in support of the charge against him.
For the foregoing reasons I would grant the relief prayed for.
Schauer, J., concurred.