People v. Seely

YORK, P. J.

Defendant appeals from an order denying his motion for a new trial and also from the judgment herein based upon the jury’s verdict finding him guilty of robbery

[526]

of the first degree, and of certain prior convictions of a felony; and adjudging him to be an habitual criminal.

It is here urged (1) that the court erred in failing to dismiss the cause under section 1382 of the Penal Code; and (2) that the district attorney was guilty of prejudicial misconduct.

Section 1382 of the Penal Code provides: ‘ ‘ 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 days after the finding of the indictment, or filing of the information.”

The information in the instant prosecution was filed on September 11, 1945, therefore, pursuant to said section 1382,

supra,

appellant would normally be entitled to a trial on or before November 10th, the sixtieth day after filing of the information. The cause was set for trial on October 22d, at which time it was continued to October 31st

at the request of appellant.

On the latter date, appellant was a fugitive from justice, he having escaped from custody on October 23d. As a result, the court continued the trial to November 28th. On that date, appellant was present in court, having been apprehended and retaken into custody on November 20th, whereupon he moved for a dismissal of the action under the provisions of subdivision 2 of section 1382,

supra.

The court denied said motion and reset the cause for trial on December 10, 1945. On the last named date, appellant renewed his motion for a dismissal which was denied, and the cause was "transferred to department 46 for trial.”