People v. Quijada

HENSHAW, J.

Defendant was indicted by the grand jury of the county of Sacramento for an assault with a deadly weapon with malice aforethought, while undergoing a life sentence in the state prison at Folsom — an offense defined by section 246 of the Penal Code. He was tried and found guilty and the death penalty was imposed. He has appealed from the judgment and from the order denying his motion' for a new trial.

The defendant was tried under an indictment found and returned on the tenth day of August, 1905. He had been indicted by a previous grand jury on the eleventh day of April, 1905. His demurrer to this earlier indictment was sustained, and the court being of the opinion that the objection upon which the demurrer was founded could be obviated, directed the submission of the matter to another grand jury. This order was made upon the twenty-sixth day of June, 1905, so that more than thirty days elapsed between that date and the day upon which the second indictment was returned. Prior to the finding of the latter indictment the defendant moved the court for an order discharging him from the custody of the sheriff of Sacramento County and directing that he be returned to the custody of the warden of the state prison at Folsom, upon the ground that no indictment had been returned against him within thirty days. He renewed this same application in different form upon the trial, basing it upon section 1382 of the Penal Code, to the effect that the court, unless good cause to the contrary is shown, must order the prosecution to be dismissed when a person has been held to answer for a public offense if an indictment is not found or information filed against him within thirty days thereafter. The court denied the motion, and properly. In the first place, good cause was shown, it being established that an important witness, Jolly, was unable to attend the session of the grand jury and give his evidence earlier than he did. But the section itself has no application to a case such as this, where a demurrer to an indictment has been sustained and the prisoner remanded to custody to await the action of a subsequent grand jury. It was decided, as to a second information, in

People

v.

[245]

Lee Look,