People v. Heeley

WORKS, P. J.

Defendant was convicted upon a criminal charge and appeals from the judgment and from an order of the trial court denying his motion for a new trial.

The only point made by appellant is that the trial court erred in denying a motion to dismiss the information under which he was prosecuted, on the ground that it was not filed within fifteen days after he was committed by the magistrate who conducted his preliminary examination. This exact question has been decided by us lately in the proceeding entitled

Gillis

v.

Superior Court,

89 Cal. App. 687 [265 Pac. 360], the opinion in which has not yet become final. We there said:

“Section 809 of the Penal Code reads as follows:

“ ‘When a defendant has been examined and committed, as provided in section 872 of this code, it shall be the duty

[655]

of the district attorney, within fifteen days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offenses . . . ’

“The petitioner relies entirely upon the foregoing section, and subdivision 1 of section 1382 of the Penal Code, which reads as follows:

“ ‘When a person has been held to answer for a public offense, if an indictment is not found or an information filed against him, within thirty days thereafter, ’ the court, unless good cause to the contrary is shown, must order the prosecution dismissed. He cites

Ex parte Fowler,

5 Cal. App. 549, 555 [90 Pac. 958], which refers to

In re Begerow,

133 Cal. 349 [85 Am. St. Rep. 178, 56 L. R. A. 513, 65 Pac. 828], and in which former ease it was stated that the superior court acquired no jurisdiction by the filing of an information more than thirty days after examination and commitment.