
    (October 31, 1922.)
    No. 3494
    STATE, Respondent, v. THOMAS ATHENS, Appellant.
    [210 Pac. 135.]
    APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.
    Appeal from judgment of conviction of unlawful possession of intoxicating liquor.
    
      Affirmed.
    
    Peterson & Coffin, for Appellant.
    Under the provisions of C. S., sec. 9176, subd. 2, the motion made by the defendant in the opening of this trial should have been sustained.
    Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondents, cite same authorities as in No. 3493, ante, p. 224.
   MCCARTHY, J.

The facts in this case are the same as those in State v. Thomas Athens, No. 3493, with this exception: the information in this case was filed on June 18, 1918, during the term of court preceding the one during which the information in case No. 3493 was filed. In this case, as in that one, on November 7, 1919, the next to the last day of the term which began January 13, 1919, appellant, after pleading not guilty to the charge, consented to a continuance of his case until the following term. 'The difference in the facts does not affect the operation of the principle applied in case No. 3493. The action of appellant in pleading not guilty and consenting to a continuance is a waiver of the statutory right to a dismissal.

The judgment is affirmed.

Budge and Dunn, JJ., concur.  