In Re Vacca

NOURSE, P. J.

The petitioner seeks his release on a writ of habeas corpus for the delay in bringing his case to trial within the 60-day period specified in section 1382 of the Penal Code.

The facts are without dispute. An information was filed on January 14, 1954, charging the defendant with the crime of grand theft and three prior convictions of a felony. On January 22, 1954, petitioner was arraigned and pleaded not guilty. On February 11, 1954, the ease was continued successively to March 3d, March 26th and April 12th. All these continuances were granted over the objection of the defendant who asserted that he wanted an immediate trial. The ground for each continuance was that the court was then engaged in the trial of another defendant, one who in each case had been informed against prior to the information filed against this plaintiff. The record inescapably shows that no one of

[752]

the orders continuing the case

for

trial was arbitrary or capricious but that each was made solely on the ground that the court was then engaged in the trial of other defendants whose cases preceded in date of information filed that of this petitioner.

On almost identical facts the District Court of Appeal in

Dearth

v.

Superior Court,

40 Cal.App.2d 56 [104 P.2d 376], granted a writ of mandate to dismiss a criminal action because it was not brought to trial within 60 days as- prescribed by article I, section 13, Constitution of California and no good cause to the contrary was shown. The court there held:

“The Constitution of California, article I, section 13, provides that in criminal prosecutions ‘the party accused shall have the right to a speedy and public trial. ’ In section 1382 of the Penal Code it is provided: ‘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