People v. Rucker

THOMPSON (IRA F.), J.

The defendant was charged with a violation of the Narcotic and Drug Act (see Deering’s Supp. to Codes & Gen. Laws, 1929, p. 3542), and also with a prior conviction of burglary. He admitted the prior conviction, but entered a plea of not guilty to the charge of violating the Narcotic and Drug Act. He was found

[363]

guilty and sentenced. He appeals from the judgment and order denying his motion for a new trial.

Four asserted reasons why we should order a reversal are advanced. They are as follows: 1. That appellant was not brought to trial within the sixty-day period fixed by section 1382 of the Penal Code; 2. That appellant was entrapped to sell a narcotic; 3. That the evidence is insufficient in a certain particular; and 4. That the district attorney and the trial judge were both guilty of misconduct.

The first contention is untenable under the authority of

Ray

v.

Superior Court,

208 Cal. 357 [281 Pac. 391], wherein it was held that defendant’s consent that the trial be set beyond the sixty-day period is equivalent to a postponement upon his own application. While the appellant stoutly insists that he did not consent to the date fixed beyond the period in the instant case, yet we have concluded that the record is against his contention. It there appears that on October 8, 1931, within the sixty-day limitation, when the case was called for trial a deputy district attorney appeared and upon the ground that a material witness was absent, asked that the cause be continued. In response to a query by the judge as to whether there was any objection counsel for the defendant replied: “Tes, your Honor. We are ready for trial.” The judge then inquired when the witness would return and ascertained that he would be available on the 25th of October. The court then said: “How about the 26thf Is that satisfactory, Mr. Groene?” Mr. Groene, who was defendant’s counsel, replied: “That is satisfactory, your Honor.” Thereupon the court made its order continuing the case until October 26th, the seventy-fourth day after the information was filed. It is manifest that counsel’s statement that the date was satisfactory amounted to a complete withdrawal of his former general objection to a continuance and in fact formed the basis for the subsequent order of the court. While it is not made the basis of appellant’s argument, yet it is set forth in his brief that the court again continued the cause from October 26th to October 28th over his objection. The facts are that on the 26th defendant made a motion to dismiss on the ground that he had not been brought to trial within the sixty-day period. Also, the prosecution represented that the attorney for the narcotic division, appointed pursuant