*1 Superior Chrisman v. Court. Division 4695. [Civ. One. Petitioner, F. THE SUPERIOR CHRISMAN, M. v. Respondents. al., COURT et op op [1] Criminal Law Action—Mandamus—Denial Dismissal Dismiss—Intendments.—Where, proceeding Motion compel prosecution it is mandamus the dismissal criminal to dis denied motion the accused prosecution, miss the all such intendments on favor of action court. op Mandate—Oppice Making op—Prerequisites

[2] Id.—Writ por.—The Application writ of mandate a writ of error to review the action of the trial court original proceeding criminal to he merits; prerequisite for it must be shown that of a motion to dismiss been invoked and (Opinion the trial court has refused to dismiss case. hearing.) court on denial of mus Id.—Delay faction that factorily (Opinion is shown case, direct there was Proceeding—Showing the dismissal in Trial immaterial whether or not response delay in faet Case—Good Cause Shown on Manda on denial in Trial trial of a ease for Court hearing.) such Immaterial.—Where was for ,a cause was satis to its satis court will trial of compel in Mandamus PROCEEDING the dismissal Peremptory action. denied. a criminal The facts are stated in the

Herbert Chamberlin for Petitioner.

George Lovejoy, Attorney, and Denver S. Respondents. Church, Deputy special 2. Mandamus as action or proceeding, note, 8 Ann. compel mandamus to seeks county of Fresno to him. felonies, grand

Petitioner was indicted wit: lar ceny, pre embezzlement, obtaining money by false *2 assigned department The to a .tenses. superior of over E. Honorable J. Woolley, thereof, herein, as one and the cause is still said said before judge. arraignment petitioner regu After of the cause was larly trial on 1922, set for the 26th of June, a trial was then had the reason that had said prohibi date court an secured alternative writ of arresting tion, day On the trial. the tenth of October, hearing was had this court the alternative writ, a peremptory writ was and denied alterna (59 tive writ 632].) A petition cause heard to have said and determined after day decision this court was thereafter, and the tenth of December, by the denied petition alleges herein has not been sixty days within after said prohibition was denied and said alterna- prohibition tive writ of discharged, days or within sixty hearing after said for said in said denied, and final therein had been made and entered; particularly and in this behalf further it is alleged at no or times “that time tenth day since of December, 1922, has the trial of said cause postponed been your petitioner; of and that at no time postponed or times has of said been subse- day 1922, upon tenth quent December, plication- petitioner; your that at time or no times subse- quent tenth December, any of said cause should not been have had.” moved said respondent

herein, provisions under the to dismiss the section the Penal Code, and also provisions of section article I under the of the con- California, provisions state of and stitution of VI amendments to constitution of article United twenty-third day States. motion was heard on superior court, Woolley May, by said E. Honorable J. judge thereof, presiding, deny- following when the order ing the motion dismiss and the cause for trial was made:

“Title of court and cause. Attorney, by

“The H. Hogan, Claude with the defendant and his K. counsel J. Tuttle are in court.

“At this time counsel for defendant moves the Court for dismissing an order above-named de- objected fendant P. M. Chrisman. The motion is Attorney and motion is submitted to the Court a ruling, due after consideration same Court, is ordered that defendant’s motion for an dismissing order the above-entitled action hereby denied.

“It is further ordered that the above entitled action be hereby and it set 6th, for trial June 1923, at 9:30 o’clock A. M.” *3 allegations

The answer of denies the postponement relative to the upon of the trial the and also as whether to or not the trial should not have been had. The answer trial judge, verified the who has at all times hearings in at the the court below. sup porting presented affidavits for our consideration by the respective parties sharp upon disclose a questions conflict fact, is, therefore, unnecessary which to discuss. The order of the trial court quoted, upon hereinabove the dismiss, transpired motion is silent to what at the hearing. ^[1] But all intendments are in favor of the ac (People v. Douglass, tion of court below the 100 Cal. 490]). Ford, In Pac. Matter 160 Cal. [34 (N. R. A. 1912D, S.) [Ann. is said that affords

757], remedy mmdanius to correct part the a clear abuse discretion on the trial court refusing arbitrarily dismiss an indictment, but that a only peremptory writ of mandate will issue where there was any showing constituting absence of an entire upon presented the hearing presented If the evidence dismiss. motion the sub- denying ject conflicting trial court the action the therefore, follows that It, the motion will be sustained. be mandamus must the writ of issued must alternative writ heretofore denied, and that the ordered. be It is so

Tyler, Richards, P. in the petition by

A have the heard in the supreme court, after district peal, October court on 15, 1923, was denied (cid:127) following opinion thereon: and the then rendered rehearing denying petition for a THE COURT. In although judge of the the fact that call attention to denying acted motion to dismiss trial court knowledge perhaps asser facts and his own attorney put of an the form of the district tions applica by oath, nevertheless affidavit verified appeal, district court of in the tion for the judge supporting conclusion of evidence delay only the affidavit the trial supported matter, in the three also verifying answer deputies attorney to the effect that the of district affidavits and asked continuances plaintiff waived the case were acceded in the attorney. ^[2] The writ of to review error writ of not a original but is the criminal upon its merits. It is true be application for the man prerequisite to shown that date must has been invoked and that motion has refused the case. Where it *4 a writ petition for of mandate response to the fact in was not such a whether or immaterial case, satisfactorily case dismissal a where direct the will delay in the trial -of a that satisfaction case parte Ex Aparean. appeal refusal to issue a amounts determination behalf that affidavits on delay,

show overcome showing petitioner.

Petition denied.

Wilbur, Lawlor, J., Kerrigan, J., C. J., and Waste, Conrey, pro tem., No. 1150.

[Crim. Division One. parte Ex Corpus. JAMES APAKEAN on Habeas Waiver—Consent—Presump [1] Criminal Law—Time Trial tion.—Consent fixing defendant day beyond sixty-day prescribed period section 1382 of the Penal presumed Code for trial will be he of the trial was so fixed objection and made no thereto. APPLICATION Corpus for a Writ of Habeas to secure custody the release of ground he had not been within proper time. De- nied. facts stated of the court. Hallinan

Vincent W. for Petitioner. Brady, Matthew District Attorney, and Alden Ames, Respondent. indulgence asks our presentation anew, stating matter were in assuming error in fact our opinion (Crim. August heretofore 1149), delivered on 1923 (ante, right speedy 1. Failure to trial as waiver trial, notes, demand (N. S.) A. 538; A. 44 L. R. . App.—31 63