218 P. 767 | Cal. Ct. App. | 1923
The petitioner, charged with the crime of felony, to wit, grand larceny, seeks his discharge upon a writ of habeascorpus. He alleges in his petition that he was arraigned upon said charge upon the fourth day of May, 1923; that upon the seventeenth day of May, 1923, he entered a plea of not guilty; that thereafter, and on June 16, 1923, the cause was set for trial for the twenty-fifth day of July, 1923; that on said twenty-fifth day of July, 1923, when the cause was called for trial, petitioner appeared with his counsel and answered "ready"; that the district attorney requested and obtained a postponement of the trial to the first of August, 1923, over the objection of petitioner's *439
counsel, who protested against a postponement of the trial beyond the sixty-day period prescribed by the statute (sec.
When the cause was first called for trial on July 25th, the sixty-day period had not run, and a motion to dismiss under the rule prescribed by paragraph 2 of section
[1] The constitution gives to a defendant a right to a speedy trial and the Penal Code expressly provides that the court must order the prosecution dismissed unless good cause to the contrary be shown, wherein a defendant is not brought *440
to trial within sixty days after the finding of the indictment or filing of the information; yet there is no duty incumbent on the court to order a dismissal under section
The writ is discharged and petitioner remanded.
Richards, J., and Tyler, P. J., concurred.