GAROUTTE, J., dissenting.
n the foregoing opinion much is said about the Great Charter, the Petition of Right, and our own fundamental law, as forbidding the unlawful restraint of the liberty of the citizen; yet it must be borne in mind that every violation of a constitutional right of an imprisoned citizen does not form the basis of a petition for a writ of
habeas corpus.
If a citizen is to be discharged from custody upon writ of
habeas corpus
because of the denial of his constitutional right to a speedy trial, I see no reason why he should
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not likewise be discharged from custody if deprived of his constitutional right to a trial by a jury of twelve impartial men. A citizen is no more entitled to a spee.dy trial by the constitution, than he is entitled to a public trial by the constitution, yet a denial of a public trial, of itself, would not justify an invocation by a defendant of a writ of
habeas corpus.
But these suggestions outline a much more serious question- than is presented by the opinion in the case at bar; for, upon a careful reading of it, we find that the conclusion is builded upon the statutory provision of the Penal Code (see. 1382) which reads: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: . . . 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.” This statute, to my mind, is but a foundation of sand upon which to rest the conclusion declared by the court.
I cannot agree to the construction given this statute. It is declared by the opinion that when the statute says a defendant “must be brought to trial within sixty days,” it means, in effect, that he must have a trial which results in a final judgment,—that is, a trial which ends in a verdict of not guilty; or if the result be a verdict of guilty, then the verdict must be one that stands the test of appeal, if an appeal be taken therefrom. In other words, it is declared that if the trial result in a disagreement of the jury, or in a verdict of guilty which is after-wards set aside by the trial court, or by the appellate court upon appeal, then, in those cases, the defendant has had no trial, or, more incomprehensible still, it is said he has not been “brought to trial.” In reply to the question, What does this law mean when it says “ a defendant must be brought to trial within sixty days” ?—the answer seems naturally to follow: it means a defendant must be
put upon his trial
within that period of time. And that the legislature intended this to be the meaning of the law, I have no shadow of doubt. The word “trial” is defined by Webster to mean “the formal examination of a matter in issue in a cause before a competent tribunal.” The Penal Code, in a hundred different places, by titles, chapters, sections, and sentences, uses the word “ trial,” and in no single place does it, standing alone, have the signification suggested in the opinion of the court. The Penal Code contemplates a procedure where a defendant may be brought
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to trial, convicted, move for a new trial, his motion be denied, then appeal from the order denying his motion to this court, and the order reversed, and the cause remanded for a new trial. Yet, after all this has been done, it surely cannot be said that the defendant in such a case has not been “brought to trial.” Instances may be found in the reports of this state, where a defendant has been tried and convicted upon a single charge of crime three times, and, upon appeal, a new trial ordered upon each conviction. I cannot bring myself to believe that such defendant'has not been “brought to trial.”
I also dissent from the construction given the statute in another important particular. The statute says the defendant must be brought to trial within sixty days “after the finding of the indictment or filing of the information.” The opinion declares the statute means, not what it says, but it means, in effect, that the defendant must be brought to trial, the first time within sixty days after the finding of the indictment or filing of the information, and thereafter within sixty days from the first trial, if that trial result in a disagreement of the jury, and if an appeal be taken to the appellate court, then within sixty days after the return of the
remittitur.
Now, this court is not authorized by judicial construction to so broaden the effect of this statute. The construction here given the statute blots out all meaning to the words “indictment or information.” It seems to me the court has now made a statute by construction, which it feels the legislature ought to have made. Again, a contrary construction to the one here declared was given this statute eighteen years ago, in
People
v.
Giesea,
63 Cal. 345, — a construction which has been approved in the very late case of
People
v. Lundin, 120 Cal. 308, and probably in still later cases. It seems to me, under these circumstances, that if the law is not broad enough as judicially construed, it is for the legislative body to broaden it.
Putting behind me all questions as to the construction of this statute, I am still satisfied, upon general principles of law, that the remedy by writ of
habeas corpus
cannot be invoked in this and similar cases. As before stated, the decision in this case, reduced and condensed, is, that this defendant should be discharged from custody upon a writ of
habeas corpus
because he has not been brought to trial within sixty days from his last trial, no good cause for the delay appearing. In other words, by virtue of this statute it is declared that his imprison
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ment has become illegal, and he is entitled to be discharged in this proceeding. But how may this be done when the statute says the trial court must dismiss
the prosecution upon motion
when the sixty-day period has expired without a trial, and there is no good cause for the delay? That statute vests the trial court alone with power to discharge the prisoner for the reasons stated. It gives this court no added power or authority. Whatever power and authority this court has in the matter is above and beyond that statute. In the case of the petitioner, he asked the trial court, by motion, to dismiss the prosecution in his case, and invoked this statute to support the motion. The trial court denied the motion. It had jurisdiction to make that order, and it was specially enjoined upon it, by the statute itself, to exercise that jurisdiction. That order was a valid, binding order, as much so as any decree or judgment made within the jurisdiction of a court of record. It forever settled the question upon which it was made, unless it was successfully assailed by appeal or other direct attack. Indeed, it was not attempted in this proceeding to review the legal soundness of the order made by the trial court; but this court has proceeded upon
habeas corpus
as if no such order was ever made, and has tried for itself the very question of fact that it was the duty of the trial court to try, and which it tried, and, having full and complete jurisdiction thereof, decided directly to the contrary of that which this court has now decided. If the court can now do this, then any superior court in the state, having jurisdiction, can do the same thing, and thus a novel and interesting judicial spectacle is presented. Upon the hearing of the motion to dismiss the prosecution in the trial court, perchance the evidence was overwhelming, showing good cause for delay in bringing the defendant to trial, and upon the hearing in some other court, upon
habeas
corpus, the evidence may not be the same, for it is a wholly independent proceeding, and there the evidence may be strong to the effect that there is no good cause for delay, and the discharge of the defendant by that court follows. A case is then presented where a trial court, having perfect jurisdiction of the question at issue, makes an order or decree refusing to discharge the defendant, the order not even being erroneous to the weight of a hair, and then a second court, upon
habeas corpus,
hearing the identical issue and making a decree directly to the contrary. I am satisfied these results cannot be attained within sound legal principles.