
    People, Plaintiff and Apellee, v. Valdespino, Defendant and Appellant.
    Appeal from the District Court of Ponce in a Prosecution for Aggravated Assault and Battery.
    No. 1980.
    Decided February 19, 1923.
    Dismissal op Prosecution — Speedy Trial. — The 120 days to which section 448 of the Code of Criminal Procedure refers are counted from the date of the filing of -the information, but the time consumed in dilatory motions and rulings thereon is a good cause for the delay and justifies a refusal to dismiss.
    The facts are stated in the opinion.
    
      Mr. B. Baigés Gomes for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Me. Justice Franco Soto

delivered the opinion of the-court.

A grand jury indicted Ernesto Yaldespino for assault with, intent to commit murder and upon trial lie was found guilty- of aggravated assault and battery. From a judgment which, sentenced him to two years in jail the defendant appealed to this Court and prays for its reversal.

Although a statement of the case was brought up, the appellant has filed no brief in support of the appeal. This omission on the part of the appellant would justify a dismis - sal of the appeal, but as the transcript of the record discloses that before the trial the defendant moved for his discharge under subdivision 2 of section 448 of the Code of Criminal • Procedure, we think it proper to. pass upon that question.

The indictment was presented on December 30, 1921, and the defendant was tried on May 9, 1922. It is clear that the 120 days referred to in section 448, supra, had expired on April 30, 1922. However, the trial court overruled the motion for the reason that upon arraignment the defendant asked to be given until January 9, 1922, for pleading to the said indictment and upon the arrival of that date he moved for further time for the same purpose and finally filed his plea on January 23, 1922. The court found that the dilatory motions made by the defendant within the 120 days Constituted good cause for the delay. We think that the court was justified in overruling the motion for dismissal on this ground, because, as held by this Supreme Court in People v. Díaz et al., 22 P. R. R. 177, the 120 days within which criminal actions should be tried are counted from the date on which the indictment is filed, but time consumed in dilatory motions is a good excuse for delay in bringing the case to trial and for not dismissing the prosecution. It does not appear that in passing upon the question of good cause in this particular case the trial judge exceeded his discretional power, and the defendant has made no attempt to show that he did.

Furthermore, the record discloses no error on the part of the trial conrt and, therefore, the judgment should he

Affirmed.

Chief Justice Del Toro and Justices Wolf, Aldrey and Hutchison concurred.  