People v. Hopper

■ PULLEN, P. J.

Defendants are jointly accused of the crime of grand theft in the stealing and carrying away of one heifer. From the judgment of conviction and from the order denying a motion for a new trial this appeal is taken.

As grounds for appeal it is claimed the court erred in the setting of the cause for trial, in the instructions to the jury, insufficiency of the evidence to support the verdict, and misconduct of the district attorney.

Appellants seem to place most emphasis for reversal upon their contention that the court erred in the setting of the case on November 24th for trial on November 30th, claiming they were not given sufficient time to subpoena witnesses and to prepare for trial. On November 20th the trial was set for January 11th; on November 24th, the defendants were again brought into court and were then represented by their counsel. At that time the court asked if they had any legal reason to show why the trial should not be had on November 30th instead of January 11th. Counsel objected, stating that November 30th followed so shortly after Thanksgiving Day, that he doubted if their witnesses would be available. The

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court inquired as to the residence of the witnesses for the defendants and was informed by the attorney for the defendants that they resided in Fortuna in the county of Mendocino. The court then directed that subpoenas be issued and placed in the hands of the sheriff for service. Objection was also made that the advancement of the date of trial would work a hardship on defendants in that it would not give them sufficient time to prepare their defense. This objection was overruled and the case was set for trial for November 30th. When the matter was called for trial on that day no further objections of any kind were made by defendants, nor was a request for a continuance asked, but without objection the defendants proceeded to trial.

Section 1049 of the Penal Code provides, ‘ after his plea, the defendant is entitled to at least five days to prepare for trial”. There is no doubt that defendants had five days within which to prepare for their trial. Whether or not, however, this provision is modified by section 12a of the Code of Civil Procedure added in 1933, which provides that when any act is required by law to be performed within a specified period of time, such period of time is extended “by such number of days as equals the number of holidays (other than special holidays) appointed by the President or by the Governor, and which occurred within or during such period”, need not be here determined, for in view of the failure to object or to request a continuance, at the time of trial this point has been tacitly waived.