People v. Magee

CONREY, P. J.

In this action the information was filed on the tenth day of February, 1922, and the case brought to trial on the following 12th of July. The defendant was convicted of the crime of assault by means likely to produce great bodily injury, a felony, as charged in count II of

[461]

the information. He appeals from the judgment and from an order denying his motion for a new trial.

Section 1382 of the Penal Code provides that “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 not brought to trial within sixty days after the finding of the indictment, or filing of the information.” At the beginning of the trial appellant moved that the action be dismissed for the reason that the defendant was not brought to trial within the period prescribed by law, and that all the continuances of the case were made without the consent of the defendant. He now contends that the court erred in denying this motion.

From the clerk’s transcript it appears that on February 17, 1922, the defendant entered his plea of not guilty, and the trial of the action was set for April 7, 1922. Thereafter, continuances were ordered as follows: On April 7, 1922, to May 2, 1922; on May 2, 1922, to July 12, 1922. The minutes show that each of these continuances was ordered “at the request of the district attorney.” The clerk’s transcript is silent as to the causes for these continuances. There is no other record of what actually occurred when the continuances were ordered, except that, in the discussion of the motion, as shown by the reporter’s transcript, conflicting statements were made by the district attorney and by the defendant’s attorney concerning the question whether the defendant did or did not consent to any continuance beyond the sixty-day period. Immediately prior to the pronouncing of judgment the defendant presented a motion in arrest of judgment, which was denied, and a motion for a new trial, which was also denied. These motions rested in part upon the ground that the court was without jurisdiction to try the defendant, for the reason that the defendant, not having waived his right to be brought to trial within the time prescribed by law, was not brought to trial within said time, “there being departments of this court, within the time prescribed by law in which the defendant had a right to be brought to trial, that were not engaged in trying criminal matters.” During the discussion of the motion in arrest of judgment, as shown by the reporter’s transcript, the