Opinion
Application of John Strong for a discharge from imprisonment on habeas corpus . Denied. (Not to be published in California Reports.)
COUNSEL
C. W. Thomas, J. Craig, and J. E. Strong, for petitioner.
R. E. Hopkins, Dist. Atty., for respondent.
OPINION
PER CURIAM.
This is an application for a writ of habeas corpus bases upon the following allegations: The petitioner was accused by information filed September 8, 1892, of the crime of assault with a deadly weapon. More than 90 days have since elapsed, but he has not been brought to trial. He has made no application for a postponement, and there is no excuse for the delay. He has asked the superior court in which the accusation is pending to order the prosecution to be dismissed, and that motion has been denied. These allegations, if true, show that it was the duty of the superior court to dismiss the prosecution, (Pen. Code, § 1382; ) but until the information is dismissed the imprisonment is lawful. Writ denied.
The section provides that ‘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.’