Ex Parte Shackleford

TYLER, P. J.

Application for writ of

habeas corpus

prayed to be directed against the sheriff of the city and county of San Francisco to secure the release of defendant from custody.

The petition recites that in, violation of the constitution of the Hnited States and of this state he is unlawfully detained and restrained of his liberty by said sheriff, who claims the right to his custody by virtue of a commitment issued out of the police court of San Francisco dated June 30, 1923, holding petitioner to answer for a felony, to wit, violating the provisions of section 476a of the Penal Code, in that he did make, draw, utter, and deliver to the Hastings Clothing Company a certain check and draft for the payment of money drawn on a certain bank. Attached to the petition is a copy of the information filed on the nineteenth day of July, 1923, charging defendant with a violation of section 476a of the Penal Code. No other record is before us. It appears from recitals in the record that on July 31, 1923, petitioner was arraigned before Honorable Harold Louderback, sitting during the vacation of Honorable Michael J. Roche of department six of the superior court, and pleaded not guilty to the charge, and requested a transfer of said cause to another department so that he might have a speedy trial. This motion was denied, and the cause was put over until September 4, 1923,

[80]

to be set down for trial after Judge Roche’s return. Upon said day the court, over defendant’s objection, set the date of trial for September 20, 1923. On this day defendant made a motion to dismiss, which was denied, and the cause was set for trial the following day. Trial was then had, and defendant was found guilty.

It is first claimed that the case was set for trial beyond the sixty days provided for by section 1382 of the Penal Code, and that the motion to dismiss should have been granted. Before a writ of

habeas corpus

is granted, sufficient probable cause must be shown to enable the court to form some judgment in the case; and if it appears from the petitioner’s statement that he has no sufficient ground for his discharge the court should not issue the writ. Nothing appears in the record before us to indicate that defendant made any objection to the actual trial proceedings. His consent must therefore be presumed.