People v. Holmes

TAGGART, J.

Defendant was informed against for the crime of embezzlement charged to have been committed in the county of Los Angeles on March 5, 1909, by appropriating and converting to his own use three promissory notes of the value of $150 each and a mortgage for $450 executed to him by one Nellie Messinger and which had been intrusted to his control and possession. An information was filed; July 17, 1909, on which defendant was arraigned and to which he filed a demurrer which was overruled; and thereafter he entered a plea of not guilty and the trial of the cause was set for September 20, 1909. August 10, 1909, a new information was filed by order of the court, on which defendant was arraigned and given until August 18, 1909, to plead. On that day, and before entering a plea, he made a motion to set aside the information on the ground that he had not been legally committed by a magistrate, and also a motion to dismiss the action because the new information had not been filed within thirty days after he had been held to answer. Both of these motions were denied; whereupon he filed a demurrer to the new information, which being overruled, he entered a plea of not guilty to the charge contained in the new information, and thereupon, by consent of defendant, the trial of the cause was set for September 17, 1909. In the minutes of the court for September 17, 1909, appears the following order: “The District Attorney with the defendant and his counsel being present in court, and this being time set for trial of this cause, and the time of the

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court being occupied with other matters, trial of this cause is set for September 27, 1909, at 10 a. m.” On September '27th defendant filed a motion to dismiss the prosecution of the action on the ground that the cause had not been brought on for trial within sixty days after the filing of the information. Leave and time were given to the district attorney to file affidavits excusing the delay in bringing the cause to trial, and to the defendant to file counter-affidavits if he desired. No showing other than the record was made by the latter, but the attorney in charge of the cause filed his own affidavit setting out the foregoing matters, the accumulation of business in the criminal courts and the conditions of the calendar and facts tending to show that it was not possible to bring the cause to trial at an earlier date. The motion was overruled and the cause proceeded to trial and the defendant was found guilty as charged. After his motions for a new trial and in arrest of judgment were overruled, he was sentenced to imprisonment in the state’s prison for five years, the defendant appealing from the judgment in open court.