People v. Wickham

Belcher, C. This is an appeal from a judgment made and entered in the superior court of Alameda [284]county, convicting the defendant of the crime of embezzlement.

The only point made for a reversal is that the court erred in denying defendant’s motion to dismiss the prosecution upon the ground that the information against him was not filed within thirty days after he was held to answer.

The constitution provides that a party accused of crime “shall have the right to a speedy and public trial.” (Const., art. 1, sec. 13.) And the Penal Code provides:

“Sec. 809. When a defendant has been examined and committed, as provided in section 872 of this code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information,” etc.

“ Sec. 1382. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: 1. When a person has been held to answer for a public offense, if an indictment is not found or an information filed against him within thirty days thereafter; 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.”

It appears from the bill of exceptions that the defendant was examined before a committing magistrate upon a charge of embezzlement, and that an order holding him to answer before the superior court of Alameda county for the said offense was made and indorsed on the deposition by the magistrate on June 25,1895; that the complaint, depositions, etc., remained in the custody and possession of the said magistrate until August 1, 1895, when they were returned to and filed in the office ' of the clerk of said court; that the information against the defendant was filed by the district attorney on August 21, 1895, and on that day the defendant moved the court to dismiss the prosecution because the information was not filed within the thirty days’ time required by¡ [285]the statute, and that the only cause shown by the district attorney why the information was not filed within the time prescribed was that the said papers were not filed by the magistrate until August 1st.