People v. Stuckrath

WORKS, J.

This is an appeal from a judgment of conviction of the crime of bigamy, from an order denying defendant’s motion for an arrest of judgment, and from an order denying his motion for a new trial. The order denying the motion for an arrest of judgment is not appealable.

Appellant contends that the trial court erred in denying a motion made by him to set aside the information, the general point being that he was not legally committed by a magistrate. The motion was made upon two grounds, the first of which was that appellant’s preliminary examination was not terminated as required by Penal Code, section 861, which reads: “The examination must be completed at one session, unless the magistrate, for good causé shown by affidavit, postpone it. The postponement cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant. ’ ’

These are the facts involved in appellant’s contention: The preliminary hearing was postponed four times, each continuance being for a period of more than six days, the extreme limit fixed by section 861. The first continuance was granted upon the application of respondent and with the consent of appellant, while the record fails to show, as to the second and fourth, upon whose motion they were granted or whether appellant either consented or objected to them. The transcript shows what occurred at the time the third postponement was granted, after a certain “argument by counsel,’’ the nature of which is not disclosed: “Mr. Andrews [deputy district attorney]: If he wants the ease continued so as to—. Mr. Kelly [counsel for appellant]: I don’t want the case• continued. ... I object to the defendant being brought in day after day, the case was set well in advance. . . . The Court: Mr. Andrews, I will continue the matter even over the defendant's objection, but I will do it only if you tell me that you think you can produce [certain missing evidence which

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the prosecution desired to offer], . . . Mr. Andrews: I can do that but I ought to' have considerable time though. . . . I should think we should have thirty days to be sure to get the [missing evidence]. . . . The Court: . . . The matter will be continued for thirty days then. . . . Mr. Kelly: I would ask to have it continued for sixty days, if your Honor please. The Court: Have you any objection to sixty days? Mr. Andrews: I don’t think it makes any difference. The Court: It will be continued then until . . . Friday, the 13th of October, at 10 o’clock in the morning.”