People v. Coahran

104 Cal.App.2d Supp. 861 (1951) THE PEOPLE, Appellant,

v.

WILBUR R. COAHRAN, Respondent.

California Court of Appeals.

Apr. 30, 1951. James Don Keller, District Attorney, H. D. Cornell and Clifford L. Duke, Jr., Deputy District Attorneys, for Appellant.

Edgar B. Hervey for Respondent.

BURCH, J.

The question raised by this appeal may be stated: In passing upon a motion to dismiss for want of a speedy trial, is the trier of fact bound by the rule on appeal that in the absence of objection at the setting the defendant is deemed to have waived his constitutional right to a speedy trial.

Defendant was charged in municipal court with the violation of Health and Safety Code, section 29020, by a complaint filed December 28, 1950. He was promptly arraigned December 29, 1950, pleaded not guilty, demanded a jury trial, and the trial was then set for February 8, 1951.

At the time of trial defendant moved to dismiss the charges against him, which motion was granted by the court for want of a speedy trial, and the People appeal.

Upon the hearing of the motion it was made to appear to the trial court that at arraignment the defendant was without counsel; that defendant was advised of his constitutional right to a jury trial but not of his constitutional right to a speedy trial; that the business of the court and of counsel for the [104 Cal.App.2d Supp. 863] People was not such as to have required such delay as occurred, and no cause was shown by counsel for the People as to why the trial of defendant had not been had earlier.

It is contended on this appeal that because the defendant, when arraigned, made no objection to the date set for trial, the defendant is thereafter estopped to complain. In support thereof the People cite People v. Rongo, 169 Cal. 71 [145 P. 1017]; People v. Douglass, 100 Cal. 1 [34 P. 490]; People v. Crittenden, 93 Cal.App.2d Supp. 871 [209 P.2d 161], and People v. Lind, 68 Cal.App. 575 [229 P. 990].

In the Rongo case trial proceeded after the statutory period of 60 days. Defendant had pending a motion to dismiss upon which there had been no hearing or ruling. After conviction without a ruling or a renewal on his motion, the Supreme Court found no error.