
    [No. 20630.
    In Bank.
    December 18, 1889.]
    Ex parte GEORGE ROSS, on Habeas Corpus.
    Criminal Law—Procedure — Dismissal tor Non-trial—Mistrial— Continuance — Habeas Corpus.-—When there has been a mistrial of a criminal case, and the case has been necessarily continued owing to the illness of a juror after the evidence was all in, such mistrial and continuance are not within the terms of section 1382 of the Penal Code, providing for a dismissal of the cause if not postponed upon the prisoner’s application, and not brought to trial within sixty days after the finding of the indictment or filing of the information. Conceding that the court had no power to continue the case for more than sixty days without petitioner’s consent, he could not be released upon habeas corpus before the expiration of that period, notwithstanding an order of continuance for a longer period.
    Application for writ of habeas corpus. The facts are stated in the opinion of the court.
    A. V. Scanlan, for Petitioner.
   Beatty, C. J.

Petition for a writ of habeas corpus.

The petition shows that the petitioner has been accused of robbery by information filed October 12, 1889. October 27th he was put upon trial. After the evidence was all in, a juroivwas by accident disabled from attending court, and the jury was necessarily discharged. Petitioner thereupon demanded an immediate trial, but the superior court continued the further hearing of the case to February 4, 1890. December 14, 1889, petitioner moved the superior court to dismiss the information and discharge him from custody, on the ground that he had not been brought to trial within sixty days after information filed. His motion was denied, and hence this petition.

Section 1382 of the Penal Code is relied upon. It is as follows:—

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;”

The case made by the petition is not within the section. Petitioner was brought to trial within sixty days. There was a mistrial, and the case was necessarily continued. Conceding that the court had no power to continue it for more than sixty days without petitioner’s consent, that period has not expired. Non constat that another trial may not be had before the expiration of sixty days, notwithstanding the order for continuance.

This is a sufficient reason for denying the writ, irrespective of other questions, as to which we refrain from expressing any opinion in the present stage of the case.

Writ denied.

McFabland, J., Fox, J., Shaepstein, J., Thobnton, J., and Patebson, J., concurred.  