This is an application for the release of petitioner on habeascorpus for the reason that he was not brought to trial within sixty days from the filing of the *Page 578 information, as provided in subdivision 2 of section 1382 of the Penal Code. The petition shows that the information was filed on August 6, 1926; and thereafter, without objection by petitioner, was set for trial for October 6, 1926, that on October 6, 1926, petitioner made a motion to dismiss because he was not brought to trial within the sixty-day period, which motion was denied; that after trial and a verdict of guilty the court on October 21, 1926, granted a motion for a new trial and set the cause for retrial on October 28, 1926, and on the last-mentioned day continued the cause until December 8, 1926.
[1] In the case of In re Begerow, 133 Cal. 349 [85 Am. St. Rep. 178, 56 L.R.A. 513, 65 P. 828], it was determined that the sixty-day period in the first instance runs from the filing of the information or indictment, but that after a mistrial another sixty-day period starts to run from the time of the determination of the mistrial. In this case the time would start to run on October 21, 1926, the date of the order granting the motion for a new trial. In the case just mentioned one of the controlling reasons for the construction adopted was the protection of defendant's right to a speedy trial after the first attempt resulted in a mistrial. The same construction was assumed in the case of Ex parte Ross, 82 Cal. 109 [22 P. 1086]. We take such to be the settled law of this state. In this case the new sixty-day period did not expire until December 20, 1926, and therefore the defendant's right in this particular was not denied him.
[2] And, in so far as the delay before October 6, 1926, is concerned, his petition shows that he was present and did not object at the time it was set for trial on that date. Under these circumstances consent is presumed. (People v. Magee, 60 Cal.App. 459 [213 P. 513]; People v. Rongo, 169 Cal. 71 [145 P. 1017]; People v. Douglass, 100 Cal. 1 [34 P. 490]; Exparte Apakean, 63 Cal.App. 481 [218 P. 767]; People v.Shackleford, 64 Cal. 78 [220 P. 430].)
Writ discharged and petitioner remanded.
Works, P.J., and Craig, J., concurred. *Page 579