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Rost v. Municipal Court of Southern Judicial District9/12/1960
DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE
Civ. No. 19438
1960.CA.40443 ; 7 Cal. Rptr. 869; 184 Cal. App. 2d 507
September 12, 1960
DANIEL B. ROST, PETITIONER,
v.
MUNICIPAL COURT OF THE SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, RESPONDENT
PROCEEDING in prohibition to command the municipal court to desist from further proceedings in a criminal case.
Stanley R. Evans and Moerdyke, Anderson, Evans & Rhodes for Petitioner.
Stanley Mosk, Attorney General, Arlo E. Smith and Edward P. O'Brien, Deputy Attorneys General, for Respondent.
Bray, P. J. Tobriner, J., and Duniway, J., concurred.
Bray
Petition for writ of prohibition to command the municipal court to desist from further proceedings in a criminal case.
Question Presented
Does an unexplained delay of approximately 140 days between the filing of a misdemeanor complaint and the arrest of defendant deprive him of his constitutional right to a speedy trial?
Record
The alleged offense occurred December 16, 1959. The complaint charging defendant with violation of section 23102,
Vehicle Code (misdemeanor drunk driving ) was filed and warrant of arrest issued January 11, 1960. Petitioner was arrested June 1. June 13, petitioner moved the municipal court in which the complaint was filed for dismissal on the grounds that he had been deprived of his right to a speedy trial, as guaranteed by article I, section 13, California Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. At the hearing the district attorney did not dispute defendant's showing that at all times he was available for arrest, nor did he offer any evidence to explain the delay in serving the warrant. The municipal court denied the motion.
Was Defendant Denied a Speedy Trial ?
"In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy . . . trial . . ." (Cal. Const., art. I, § 13.) "In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. . . ." (U. S. Const., Amendment VI.)
It is rather interesting to note that while there are a number of cases both in this state and other jurisdictions dealing with the question of what amounts to a denial of a speedy trial after arrest, there is a dearth of authority on the subject as it relates to the time between the filing of a criminal complaint and the arrest. The only case in California on the subject is Harris v. Municipal Court (1930), 209 Cal. 55 [285 P. 699]. There a peremptory writ of mandate was issued to terminate the prosecution of a misdemeanor charge in the municipal court. The circumstances of the case were unusual. During the receivership of the Julian Petroleum Corporation it was discovered that various individuals had been paid large sums of money by the corporation in excess of the rate of interest permitted by law. The receivers brought several actions to recover this usurious interest. About the same time the city prosecutor, in order to assist the receivers in collecting the amounts paid as usurious interest, caused to be filed in August, September and October of 1927, 143 complaints charging the crime of usury, a misdemeanor. He then caused a statement to be published to the eff
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