Muller v. Justice's Court of Third Township

KAUFMAN, J.

This is an appeal from a judgment entered on October 1, 1952, denying a peremptory writ of mandate to compel the dismissal of an action pending in justice court against petitioner, William Muller. The record on appeal is in the form of an amended engrossed statement. The dismissal was sought on the ground that the prosecution had not afforded petitioner a speedy trial inasmuch as the prosecution had failed to bring the action to trial within 30 days after defendant was arrested and brought within the jurisdiction of the court, nor within 30 days after the removal of the cause to the Justice Court of the Third Township, County of San Mateo, following the granting of petitioner’s motion for change of venue.

Section 1382, Penal Code, requires that the “court, unless good cause to the contrary is shown, must order the action to be dismissed in the following eases: ... (3) Where the trial has not been postponed upon the defendant’s application, if the defendant in a misdemeanor case in an inferior court, is not brought to trial within 30 days after he is arrested and brought within the jurisdiction of the court, ...”

[571]

On April 24,1952, a criminal complaint charging a violation of section 499 of the Penal Code, a misdemeanor, was signed and filed in the Justice Court of the Fourth Township, County of San Mateo, and petitioner was arrested on April 27. He appeared for arraignment on May 2, 1952. No appearance was made by the district attorney and the matter was continued to May 16. Petitioner on May 9 filed in open court a motion to quash execution of warrant of arrest and to exonerate cash bail which was denied. Also on that date he filed a written motion requesting the presence of a court reporter at all oral proceedings, which was partly heard and denied.

On May 16, petitioner filed a “Motion to Set Aside and Quash Criminal Complaint,” as well as a demurrer. These matters were partly heard and both were denied. He then, on the same date, entered his plea of not guilty, and the case was set for trial by the court for June 20, 1952, because, as stated by the court, an earlier date within 30 days of May 16 would interfere with the court’s traffic calendar. It is stated in the engrossed statement that defendant did not waive his right to be tried within the 30 day period orally or otherwise. However, there is nothing in the record to show that he objected, and it has been held that when the case is set for trial in the presence of defendant and his counsel (here, defendant is his own counsel) and no objection is made that it is beyond the statutory period, the objection is deemed waived.