Ferenz v. Superior Court

THE COURT.

This is a petition for a writ of mandamus to require the respondent to dismiss the indictment against the petitioners and to discharge them from custody on the ground that the cause was not brought to trial within sixty days of the filing of the indictment, as required by section 1382 of the Penal Code. To this petition the respondent has filed a demurrer on the ground that the pleading fails to state facts sufficient to constitute a cause of action or to authorize the issuance of the writ of mandate.

The pleadings show that these seven petitioners were jointly indicted by the grand jury of Sacramento County, with two other defendants named Robert Noble and Ellis 0. Jones, on May 5,1942, for the crime of failing to register with the Secretary of State as officers or members of the board of directors of the “Friends of Progress,” a subversive organization advocating the overthrow of the United States Government by means of force and violence, contrary to the provisions of the Statutes of 1941, page 1236, chapter 183; that the petitioners were subsequently duly arraigned, and a plea of not guilty was entered as to each; that the trial of these petitioners was first set by consent for July 20th; that on motion the trial of said cause was subsequently re-set by consent of all parties for July 6th; that on the last-mentioned date the prosecution moved to continue the trial to July 21st, which was opposed by the petitioners on the ground that they were entitled to a speedy trial.

This motion was presented on affidavits of the respective parties. The affidavits in behalf of the prosecution show that the defendants Noble and Jones had been previously indicted by the federal. grand jury and were then on trial at Los Angeles in the United States district court on a charge of conspiracy to violate the sedition laws of the United States ; that Noble and Jones were then in the exclusive custody of the United States officers and that it was impossible to secure their presence, and the presence of certain necessary witnesses until after the completion of that trial; that it is de

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sirable and necessary, to prevent a miscarriage of justice, that the nine defendants who are charged in this indictment be tried jointly, for the reason that the trial will require the presence of some fifty witnesses, including several who reside at Washington, D. C., and a large number at the city of Los Angeles, and that the trial of this cause will consume eight to ten weeks of time. Upon that showing, over the objection of the petitioners, the court ordered that the trial of this cause be set for July