In Re Spagnoli , 53 Cal. App. 523 ( 1921 )

This is an application for a writ of habeas corpus. From the facts alleged in the petition, it appears that Edmund Murphy is confined in the state prison at San Quentin under and by virtue of a certified copy of a judgment of the superior court of the city and county of San Francisco, based upon the conviction of said Murphy of the crime of rape. Coincident with the return of the indictment upon which he was convicted, the grand jury returned five other indictments, accusing the defendant with various felonies growing out of the same offenses. Petitioner complains that the superior court refuses, without cause, to proceed to trial on any of the charges contained in said last-mentioned indictments.

[1] Assuming that to be true, the petitioner is not in a position to avail himself of this proceeding in habeas corpus.[2] Where the superior court, without good cause, has postponed the trial of a defendant, without his consent, beyond the sixty days within which the statute requires he must be tried or the indictment against him dismissed, he is entitled to relief by a proceeding in mandamus, on a proper showing, to compel a dismissal of the indictment. (In re Ford, 160 Cal. 334, [Ann. Cas. 1912D, 1267, 35 L. R. A. (N. S.) 882, 116 P. 757].)

The application for the writ is denied.