People v. Jori

STURTEVANT, J.

The district attorney filed an information against the defendant charging him with having committed a felony. (Pen. Code, sec. 288.) The defendant entered a plea of not guilty and a trial was had before the court sitting with a jury. .The jury returned a verdict of guilty, the defendant made a motion for a new trial, the motion was denied and judgment was entered on the verdict. The defendant has appealed from the order and from the judgment.

The defendant complains that certain continuances were “granted” in violation of the provisions of section 1050 of the Penal Code. The defendant entered his plea on January 21, 1929. On that date the cause was set for trial on February 6th; on that date the trial was put over to February 11th; on the eighth day of February the date of the trial was further put over until the twenty-fifth day of February; and on that date it was put over until the next day, the twenty-sixth, and at that time the trial commenced. At no time did the prosecution ask for a continuance and no continuance was “granted.” The record shows facts from which it can be inferred that the trial court was busy in the trial of other criminal cases during all business hours from January 21 to February 25, 1929, both dates inclusive. The record does not show to the contrary but that each postponement was ordered by the court of its own motion. The language of section

[282]

1050 of the Penal Code contains nothing applicable to postponements which the trial court orders because the court is otherwise engaged. That section is addressed to continuances asked by one of the parties.

The prosecuting witness was five years of age. The defendant contends that the trial court erred in allowing her to testify. The attorney-general asserts that the trial court did not err and he cites

People

v.

Reyes,

194 Cal. 650 [229 Pac. 947]. It is closely in point. Thb defendant cites, and relies on

People

v.

Delaney, 52