People v. Hayes

YORK, J.

In a second amended information, the defendant was charged with grand theft from the person, together with four prior convictions of felonies, Defendant admitted the prior convictions and by verdict of the jury was found guilty as charged in the information. He now appeals from the judgment of conviction and from the order denying his motion for a new trial. Apparently the main points involved in this appeal are: (1) Whether or not defendant as a matter of right was entitled to have the proceedings against him dismissed under Penal Code, section 1382, subdivision

2;

and (2d) whether the judgment sentencing him to life imprisonment was proper.

Penal Code, section 1382, subdivision 2, reads as follows: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: . . .

“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty

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days after the finding of the indictment, or filing of the information.”

It appears from the record that an information was filed on April 18, 1934, charging defendant with grand theft from the person, and on April 25, 1934, an “amended information” was filed charging defendant with the same crime as set out in the original information, and in addition four prior convictions of felonies. On April 27th a plea of not guilty to the amended information and not guilty of the prior convictions-was entered and the case was set for trial for May 23, 1934. On the latter date, when the case was called for trial, a “second amended information” Avas filed. This amended information differs from the first amended information in that the dates of the convictions of two of the prior felonies were changed and an allegation as to one felony was added to the effect that defendant had served a term of imprisonment therefor. The defendant was arraigned on the day the second amended information was filed and entered a plea of not guilty and denied the prior convictions, whereupon the trial of the ease was continued to June 25, 1934, “for the reason that the defendant’s counsel is actually engaged in trial of another case”. On June 25, 1934, when the case was called for trial and the jury sworn, the defendant moved to dismiss the case on the ground he had not been brought to trial within sixty days of the filing of the information, which motion was denied.