People v. Farrington

SHAW, J.

The defendant was convicted in the court below of the crime of grand larceny, and this is an appeal from the judgment of conviction.

The first error assigned by the defendant is the refusal of the court to grant his motion to dismiss the prosecution be

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cause of the failure of the. district attorney to file an information within thirty days after the defendant was held to answer. The crime was committed on the twenty-first day of August, 1902. The preliminary examination took place on August 27, 1902, and the information was filed on September 28th of the same year. The trial began on October 14th. The Penal Code provides that when the information has not been filed within thirty days after the defendant was held to answer, the prosecution must be dismissed, “unless good cause to the contrary is shown. ’ ’ (Pen. Code, sec. 1382.) The cause shown in this case by the district attorney was, that the proceedings in the preliminary examination were taken down in shorthand by the official reporter, who wrote the same out in longhand, and delivered a copy to him, which he used in examining the case and preparing the information; that this copy, officially certified by the reporter, stated that the examination had taken place on the 28th of August, instead of the 27th, as the fact was, and that, being misled by this mistake in the date, he did not file the information until September 28th, believing that he had until that time to do so. The mistake of one day in giving the date of the preliminary examination and commitment was not an error of such striking character that it would of itself necessarily call the attention of the district attorney to the fact that it was an error. Under the circumstances the mistake was a natural one, and as the court below must be given some discretion in the matter, and in this ease the trial took place .within less than sixty days from the time when the crime was alleged to have been committed, we cannot say there was an abuse of discretion in this respect, or that the court erred in refusing to dismiss the prosecution.

It is urged that the fifth instruction given by the court is erroneous. It is as follows: “The court instructs the jury that the possession of stolen property recently after the commission of the alleged offense by the person charged, if you find any such property to have been in his possession, if unexplained, is a circumstance tending to prove his guilt, and if the jury believe from the evidence that the defendant was found with stolen property in his possession, if you find any was feloniously taken, then to determine the weight to be attached to that circumstance as tending to prove guilt, the