People v. Cline

Searls, C. J. The defendant was convicted of grand larceny.

The information was filed April 22, 1886.

A demurrer was interposed, which was properly overruled, on the eleventh day of June, 1886. The trial did not take place until November 22d of the same year.

At the trial, counsel for defendant moved to discharge the defendant upon the ground that said cause had not [576]been, brought to trial within sixty days after filing the information. The motion was properly denied.

After the demurrer was overruled, the district attorney asked to have the cause set down for trial. This was objected to by counsel for defendant, who thereupon asked that it be not set down, and offered, if the cause was not set' down, to waive the time fixed by law for the trial thereof; and thereupon the court refused to fix a day, and it went over.

When, as here, the delay has been granted at the request of defendant, and presumably for his benefit, the objection is entitled to little consideration. The delay was of his own seeking, and is equivalent to a motion on his part for a postponement of the ease, and therefore did not entitle him to a dismissal under section 1382 of the Penal Code.

At the trial, defendant offered to prove, by one Frank Serradell, that on the fifth day of February, 1886, at the saloon of one Degan, in Fresno, he paid to one Robles the sum of twenty dollars. The testimony was objected to. Objection sustained, and an exception taken, and the ruling is assigned as error.

The testimony relied upon by the prosecution to prove guilt depended largely, but not wholly, upon the fact that the horse stolen was found in the possession of defendant soon after the theft was perpetrated.

There was evidence tending to show that defendant purchased the animal in question on the fourth day of February, from Robles, for thirty dollars; that he paid ten dollars on account of the purchase, and agreed to pay the residue of twenty dollars the next day, at Fresno; that he took the colt to Owen’s ranch, where he worked; that the next day he procured twenty dollars from his employer, mounted the animal, rode it to Fresno, where he placed it in a livery-stable, and proceeded to the saloon of Degan, where he met Robles, and, as he himself testified, in the presence of the witness Serradell, paid to Robles the twenty dollars.