Krouse v. JUSTICE'S COURT OF TOWNSHIP NUMBER TWO, LAKE COUNTY

California Court of Appeal Apr 7, 1951 No. Civ. 7881Published

Before: Deirup

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Holding. The court held that the appellants waived their right to a dismissal for failure to be brought to trial within the statutory 30-day period because they consented to the trial date by failing to object at the time it was set.

Issues

Whether the appellants were entitled to a dismissal of misdemeanor charges for failure to be brought to trial within 30 days of arrest under Penal Code section 1382.
Whether the appellants waived their right to a speedy trial by failing to object to the trial date at the time of arraignment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The courts have held that where the case is set for trial in the presence of the defendant and his counsel and no objection to the date as being beyond the statutory period appears in the record, the objection is deemed waived.”

“Thus it appears affirmatively from the record that the appellants consented to the trial date by their failure to object thereto.”

DEIRUP, J. pro tem

tern.—Appellants were charged in the respondent justice’s court with violation of sections 1151 and 1275.5 of the Fish and Game Code of the State of California. They were arrested on March 4, 1950, and were arraigned on March 6th and entered pleas of not guilty. Their cases were set for trial on April 4th. At the time set they moved the justice’s court to dismiss the actions on the ground that appellants had not been brought to trial within 30 days after they had been arrested and brought within the jurisdiction of the court. The motions were denied and appellants were convicted by a jury.

On April 6th, before the time fixed for sentence, appellants filed in the superior court a petition for a writ of mandate directing the dismissal of the actions. An alternative writ was issued. After the filing of an answer the matter was heard and judgment was entered denying a peremptory writ of mandate. This appeal is taken from the judgment.

Section 1382 of the Penal Code provides in part:

“The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

“1. . . .

“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.

“3. If a defendant in a misdemeanor case in the justice’s court, whose trial has not been postponed upon his application, is not brought to trial within thirty days after the defendant is arrested and. brought within the jurisdiction of the court, ...”

The contention of appellants is that the record before this court shows that the appellants were entitled to dismissals by reason of the provisions of subdivision 3 of the section.

The record which was requested by the appellants and is now before us is meager. It consists of the petition for a writ of mandate, the order for the alternative writ, the alternative writ, the answer to the petition, the minutes of the superior court which recite that a demurrer was overruled and that the alternative writ was discharged and a peremptory

[313]

Krouse v. JUSTICE'S COURT OF TOWNSHIP NUMBER TWO, LAKE COUNTY

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