Ex Parte Apakean

ST. SURE, J.

The petitioner, charged with the crime of felony, to wit, grand larceny, seeks his discharge upon a writ of

habeas corpus.

He alleges in his petition that he was arraigned upon said charge upon the fourth day of May, 1923; that upon the seventeenth day of May, 1923, he entered a plea of not guilty; that thereafter, and on June 16, 1923, the cause was set for trial for the twenty-fifth day of July, 1923; that on said twenty-fifth day of July, 1923, when the cause was called for trial, petitioner appeared with his counsel and answered “ready”; that the district attorney requested and obtained a postponement of the trial to the first of August, 1923, over the objection of petitioner’s

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counsel, who protested against a postponement of the trial beyond the sixty-day period prescribed by the statute (sec. 1382, Pen. Code); that on August 1st said cause was again called for trial; that petitioner appeared with his counsel and answered “ready”; that the district attorney also answered “ready”; that thereupon a jury was regularly examined by respective counsel, was accepted and sworn to try the case; that the district attorney then read the information to the jury and made his opening statement; that thereupon the district attorney offered in evidence a transcript of the testimony of one Jack Graham, taken-on the preliminary examination of the petitioner, and that for the purpose of laying the foundation for the introduction thereof, the district attorney called a police officer as a witness, and said witness was examined by the district attorney and cross-examined by counsel for petitioner; that the trial court sustained an objection made by counsel for petitioner upon the ground that no proper foundation had been laid for the introduction of the transcript; that the district attorney thereupon requested the trial court “for a continuance of the trial to enable him to search anew for said Graham, and either produce him as a witness or lay the proper foundation for the admission of said transcript; that the court thereupon, and over the objection of the petitioner and his counsel, granted said motion and discharged the jury and continued the .trial of said case to September 6, 1923 ’ ’; that petitioner then moved for a dismissal of the cause upon the ground that the same had not been brought to trial within sixty days after the filing of the information.