Dearth v. Superior Court

WOOD, Acting P. J.

In this proceeding petitioner seeks a writ of

mandamus

to require the Superior Court of Los Angeles County to dismiss a criminal action pending against him on the ground that he has not been brought to trial within the time required by law. From the petition and the answers thereto the following facts appear: An information was filed against petitioner in the superior court on February 21, 1940, charging him with the violation of subdivision 3 of section 337a of the Penal Code. He entered a plea of not guilty in department 41 on February 26th, and his trial was set for March 27th in department 44. On the last-mentioned date petitioner appeared in department 44 and answered ready for trial but the judge presiding in that department on his own motion continued the trial to April 22d, at which date petitioner again appeared ready for trial but the trial date was continued to April 23d. Petitioner appeared on

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April 23d in department 44 ready for trial but the presiding judge of respondent court had assigned a civil case to department 44 for trial and the judge presiding in department 44 commenced the trial of the civil case and continued the trial of petitioner to April 26th. On April 24th petitioner moved the court to dismiss the action pending against him on the ground that he had not been brought to trial within 60 days as required by section 1382 of the Penal Code. The judge presiding in department 44 denied petitioner’s motion and in commenting on the motion stated for the record that he was ready to try petitioner’s case on April 23d if the presiding judge had not assigned a civil ease to his court for trial. On April 26th petitioner again appeared in department 44 and moved the dismissal of the action on the ground that he had not been brought to trial within the time provided by law, but the motion was denied and the action transferred to department 41, the master calendar department of respondent court. Petitioner’s motion to dismiss was again made before the judge of the master calendar department and was by him denied and petitioner’s trial was continued to May 13th in department 41. Thereafter petitioner applied to this court for a writ of

mandamus

and an alternative writ was issued herein on May 9, 1940.