delivered the opinion of the court.
As we understand the facts of this petition, which are a little uncertain, a complaint was at one time filed against the petitioner, namely, on August 17, 1917, in the Municipal Court of Aguadilla and subsequently, or on July 31, 1920, an information was filed against him in the District Court of Aguadilla for the same offense; that on December 21, 1920, the petitioner presented a motion asking for a dismissal by virtue of section 148 of the Code of Criminal Procedure, inasmuch as there was no trial for 120 days (from and after a time not named), and that on the 21st day of February he made a similar motion because the trial had not been had within 120 days after the beginning of the. prosecution. We are not certain that the petitioner is not attempting to say that there has been no trial since the original prosecution in the municipal court was begun in August, 1917. The petitioner does not say that the 120 days should be counted from the filing of the information as required by section 448, supra.
*151The petitioner also presented a motion on the same day alleging several matters, namely, that the grand jury had no right to consider a misdemeanor and that the supposed misdemeanor was committed at least three years before and hence was barred. Independently of the fact that limitation must be pleaded, it is evident that these particular matters could all he reached by an appeal and that the petitioner could not he prejudiced by a delay.
In Dyer v. Rossy, 23 P. R. R. 718, we decided that mandamus would lie to compel a judge to dismiss a case where a trial had been delayed for more than 120 days from the filing of the record on appeal in the district court. In that case, however, the petition set forth the canses alleged by the fiscal and we had the opportunity of judging whether they were just causes or not.
Section 448 of the Code of Criminal Procedure, in its first paragraph, provides as follows:
“The court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed in the following cases: * * * ”
• So that, where a court has refused to dismiss, the presumption would be that the court has so refused to dismiss because there was a good cause and therefore the petitioner should overcome the presumption that the refusal was based on good cause.
Not being convinced from the petition prima facie that the petitioner’s case was delayed without just cause, the writ must be denied.
Petition denied.
Chief Justice Hernández and Justices Del Toro, Aldrey and Hutchison concurred.