Sigle v. Superior Court

NOURSE, P. J.

These companion cases present a demand for a writ of mandate to the superior court requiring the dismissal of a criminal action because trial was not had within 60 days after the finding of an indictment as required by section 1382 of the Penal Code. The defendant Barrish in case Number 16232 has filed an identical petition with that in 16231 and has asked for the same relief. The two cases will be treated in one opinion and separate judgments will be entered.

[748]

The State concedes that the parties were not brought to trial within the statutory time and rests on the defense that the circumstances show a sound and reasonable excuse for the delay. If this is so the writs must be denied.

The two petitioners were eodefendants in the criminal indictments with one Tarantino, both charging conspiracy. The same Tarantino was joined with another defendant in another indictment. All actions were assigned to the same department of the superior court. The last mentioned case went to trial on September 22, 1953, and continued for 90 trial days. Following a verdict of guilty, various motions were made on behalf of Tarantino ending in a sentence to the state penitentiary on February 26, 1954.

The record shows that on May 11, 1953, Barrish and Sigle demanded an immediate trial and on May 18, 1953, they made their first motion to dismiss because they had not been brought to trial in 60 days. • They have persistently on almost innumerable occasions made similar demands and motions since, both before and after the trial of Tarantino on the other charge. .At the time when they filed their petitions with this court, on April 9, 1954, they still had not gone to trial and no trial date has been set.

We are fully aware of the rule of

In re Lopez,

39 Cal.2d 118 [245 P.2d 1] and

Ferenz

v.

Superior Court,

53 Cal.App.2d 639 [128 P.2d 48], There it was held that the determining factor in cases of this kind is whether a good cause is shown—such as the crowded condition of the court’s business. But we cannot conclude that good cause has been shown here within the rule of the cited cases.