People v. Hawkins

BRITT, C.

1. On December 2, 1898, an information was filed by the district attorney in the court below accusing defendant of the crime of assault with intent to murder, specifying also that the assault was committed with a deadly weapon. Section 1382 of the Penal Code contains the following provision: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

[374]

.... 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.” January 13, 1899, the court made an order setting defendant’s case, for trial on February 3d, following. On said February 3d defendant was present in court with his counsel and announced that he was ready for trial; a jury was then impaneled and sworn to try the case; whereupon defendant moved the court to dismiss the action and discharge him, on the ground that he had not been brought to trial within sixty days after the information was filed. The court denied the motion; the trial proceeded and resulted in a verdict of guilty of an assault with a deadly weapon, upon which sentence of imprisonment was pronounced.

There is no duty incumbent on the court to order dismissal under said section 1382 unless the defendant demands it

(Ex parte Fennessy,

54 Cal. 101); so that the right, like other statutory privileges of the accused which do not affect the jurisdiction of the court, may be waived. It is well settled that the impaneling of the jury is part of a trial

(Silcox v. Lang,

78 Cal. 118); the legal jeopardy of the defendant has attached when a jury has been “charged with his deliverance,” and the jury stands thus charged when its members have been impaneled and sworn. (Cooley’s Constitutional Limitations, 6th ed., 399.) When, therefore, the defendant here moved for dismissal he had been “brought to trial,” and was upon trial, without previous objection that the limit of sixty days haá expired. If he could then raise the objection for the first time, he could raise it as well on the announcement of the verdict, or at any other stage of the trial. We are satisfied that the statute never was designed for such uses, and must hold that defendant waived its benefit (if he was entitled thereto) by failure to claim it in proper season. The following cases tend to sustain this conclusion: