85 Cal. 515 | Cal. | 1890
The defendant was convicted in the court below of the crime of larceny, and sentenced to the state’s prison for the term of four years. In support of his appeal to this court, he contends that the court below erred in overruling a motion made by him to dismiss the case. The motion to dismiss was made on the ground that he was not given a speedy trial. It was shown or stipulated, in support of his motion, that the information against him was filed on the seventh day of August, 1888; that he was arraigned and entered his plea of not guilty on the twelfth day of the same month;' and that he had never made any application for, nor was there any postponement of, the action in his behalf or on his application. The motion to dismiss was made on the nineteenth day of March, 1889. No showing was made on the part of the people, or any attempt made to show any valid reason for the delay. The constitution guarantees a speedy and public trial to every person charged with crime. (Const., art. 1, sec. 13.) The legislature has provided what shall constitute a reasonable time -within which a defendant shall be brought to trial. Section 1382 of the Penal Code provides: “ 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 filing of the indictment or filing of the information.” The court below, in denying the defendant’s motion, said: “ The question you raise I have con
Certain rulings of the court upon the evidence are complained of, but the proper exceptions were not reserved, and the questions cannot, for that reason, be considered by this court.
The defendant requested the court to instruct the jury: “If the jury believe that the defendant had no felonious intent to steal the property at the time he took it, they must acquit, even if they should believe that he subsequently conceived the intent to appropriate it.” The court gave the first clause of the instruction, but refused to give that part of it in Italics. The instruction was correct as an abstract proposition of law. (People v. Jersey, 18 Cal.
Paterson, J., and Fox, J., concurred.