I dissent.
The majority conceded that defendant was erroneously denied the speedy trial guaranteed to him by the federal and state Constitutions and by the statutes of California. It is conceded that there was no good cause shown by the court or prosecution for the delay, that defendant did not waive the right but to the contrary properly and vigorously asserted it before the trial court and the District Court of Appeal.1 It is further conceded that when defendant moved to dismiss in the trial court, that court was under a mandatory duty to dismiss. The majority correctly state that then (and, it is submitted, when the petition for mandate was filed in the appellate court) prejudice to the defendant was conclusively presumed. Article VI, section 4%, of the Constitution then had no application. At that time, the majority state, the trial court’s jurisdiction, and equally the appellate court’s jurisdiction, was, solely, to order a dismissal. This was so much a matter of “jurisdiction” that the majority are forced to concede that defendant was then not only entitled to the writ of mandamus, but also to a writ of prohibition or habeas corpus. The last two are, of course, jurisdictional writs. They could issue only if the sole power and duty of the trial court was to dismiss, and only if the trial court had no “jur*158isdiction” to try the accused. But then the majority hold that, because the trial court, without defendant’s consent and against his will, denied him, erroneously, his constitutional and statutory rights, because the trial court rode roughshod over these fundamental rights, because the trial court, illegally, forced him to a trial over which it had no jurisdiction, and because, at such trial, over his very proper objections, introduced evidence of guilt, that in some unexplained and inexplicable manner the trial court regained “jurisdiction” to try him, and that this error, this fundamental invasion of an important constitutional and statutory right, became immaterial and must be disregarded. Thus, this invasion of fundamental rights, this error that was admittedly prejudicial when committed, becomes, in some magic way, purged. The provisions of article VI, section 4%, in some way not explained, make the error, prejudicial when committed, nonprejudicial now. This is illogical and unsound, and a wrongful denial of fundamental rights. It amounts to a judicial repeal of a constitutional and statutory right. The right to a speedy trial cannot and should not be treated so cavalierly.
The right to a speedy trial is a fundamental part of the right to a fair trial. It is not of recent origin. It is rooted in the Magna Charta, and those 17th century enactments— The Petition of Bight (1628), The Abolition of the Star Chamber (1641) and The Habeas Corpus Act of 1679.2 (See also In re Begerow, 133 Cal. 349 [65 P. 828, 85 Am.St.Rep. 178, 56 L.R.A. 513].) It is guaranteed by both the federal and state Constitutions. Amendment VI of the United States Constitution provides, in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. ...” Article I, section 13, of our state Constitution provides, in part: “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; ...” The Legislature has spoken on this subject with unmistakable clarity. In setting forth the fundamental rights of a defendant in a criminal action the very first subdivision of section 686 of the Penal Code provides that in a criminal action the defendant is entitled “ [t] o a speedy and public trial.” Not content with simply stating the existence of this right, the Legislature in 1959 (Stats. 1959, ch. 1693, pp. 4092-4093, § 2) amended section 1050 of the Penal Code, so as to state the public policy behind this *159provision. It provides: “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. No continuance of a criminal trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance. ... No continuance shall be granted for any longer time than it is affirmatively proved the ends of justice require. Whenever any continuance is granted, the facts proved which require the continuance shall be entered upon the minutes of the court. ...”
Then the Legislature carefully and properly interpreted article I, section 13, of the Constitution, by providing what constitutes a speedy trial, and the consequences of its denial. By section 1382 of the Penal Code it is provided:
“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:. . .
“2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . . except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, . . . and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.” (Italics added.) The 10-day limit was added to the section by amendment in 1959 (Stats. 1959, ch. 1693, p. 4093, §3). This amendment was aimed at clarifying defendant’s rights under the section. As is pointed out in 34 State Bar Journal 717 (1959): “Previously [before the 1959 amendment], if postponement of a trial was attributable to defendant, his right to a speedy trial was clouded. . . . Now, when defendant secures postponement to a date beyond the statutory period of § 1382, the case must be dismissed unless defendant is brought to trial within 10 days after the last date for trial to which he himself has consented.. . .”
*160Under these sections the defendant has a constitutional and statutory right to have the case against him proceed to trial within the times specified, unless he consents to the delay, or unless the prosecutor proves good cause for the delay. (See People v. Johnson, 205 Cal.App.2d 831, 834 [23 Cal.Rptr. 608].) Here, the defendant waived the original 60-day period, and waived time for a considerable period thereafter. But the last day to which defendant in any way consented was August 25, 1960. This automatically brought into operation the 10-day provision of section 1382 of the Penal Code. Under that portion of the section the defendant had the statutory right to be tried within 10 days of August 25th, unless he consented to or requested the delay, or unless the prosecutor or the court showed good cause for further delay. Certainly the defendant did not then consent to or request a delay. He demanded, in no uncertain terms, that the case go to trial on August 25th, objecting to any other day. Instead of that, the court set the case for trial on October 31st, some 67 days after August 25th. The court had the legal power to so extend the time only upon a showing of good cause. The burden of showing good cause is on the prosecution or court. (People v. Morino, 85 Cal. 515 [24 P. 892]; Harris v. Municipal Court, 209 Cal. 55 [285 P. 699]; People v. Fegelman, 66 Cal.App.2d 950 [153 P. 436]; People v. Echols, 125 Cal.App.2d 810 [271 P.2d 595]; Herrick v. Municipal Court, 151 Cal.App.2d 804 [312 P.2d 264]; Wilborn v. Superior Court, 175 Cal.App.2d 898 [1 Cal.Rptr. 131].) There is no presumption that good cause exists, and the defendant need not affirmatively show prejudice from the delay. Prejudice is presumed from unreasonable delay. (Harris v. Municipal Court, supra; Kehlor v. Municipal Court, 116 Cal.App.2d 845 [254 P.2d 897].) While the determination of what constitutes good cause is a matter that rests in the discretion of the trial court (In re Lopez, 39 Cal.2d 118 [245 P.2d 1]), this discretion must not be exercised arbitrarily. (Harris v. Municipal Court, supra; People v. Fegelman, supra.)
Certainly no “good cause” for the delay was shown, and this is admitted by the majority. The trial court mentioned, and the majority emphasize, that defendant had waived the original 60-day period and waived time for a considerable time thereafter, but these facts are immaterial. Even the majority opinion concedes that a waiver of the original 60-day period did not constitute a waiver of periods beyond *161the date to which defendant had consented. (See generally Kehlor v. Municipal Court, 116 Cal.App.2d 845, 848 [254 P.2d 897].) In the present case there is absolutely no basis for an estoppel or waiver, and this is conceded by the majority.
It is also conceded that defendant filed a proper motion to dismiss on October 25, 1960, six days before the date set for trial. This motion should have been granted and the majority so concede. After its denial a proper application for mandate was filed October 27, 1960. This petition should have been granted. Not only should mandate have issued, as the majority concede, but it is also conceded, had the defendant applied for habeas corpus or prohibition, he would have been entitled to such writs. (In re Begerow, supra, 133 Cal. 349, In re Lopez, supra, 39 Cal.2d 118, and In re Vacca, 125 Cal.App.2d 751 [271 P.2d 162], dealing with habeas corpus, and Herrick v. Municipal Court, supra, 151 Cal.App.2d 804, and Coughlan v. Justice Court, 123 Cal.App.2d 654 [267 P.2d 368], relating to prohibition.)
The majority brush aside these fundamental and jurisdictional errors with the cavalier statement that they are merely procedural in nature and cured by the beneficent provisions of article VI, section 4%, of the Constitution.3 Although, as the majority concede, the error may be raised on appeal, unless prejudice is shown, the defendant is without remedy. This is to imply, if not hold, that article VI, section 4%, repealed the fair and speedy trial provisions of our Constitution. This is not the law. The People in passing and the Legislature in adopting the provisions guaranteeing an accused a speedy trial have spoken on a fundamental question of policy. They have determined that, as a matter of constitutional and statutory law, it is prejudicial, as a matter of law, to deny a defendant a speedy trial. Since the People have spoken on this subject of policy it is not a proper exercise of the judicial function to subvert that policy.
As already pointed out, the defendant did not waive his rights, nor was he guilty of any acts sufficient to raise an estoppel. To the contrary, he asserted his rights by taking all procedural steps necessary to protect them. Admittedly, error was committed in denying his rights to him. Admittedly, *162when he was forced to trial against his will and over his objections, he was prejudiced as a matter of law, and was denied a constitutional and statutory right.
The argument that by improperly forcing him to go to trial and by introducing sufficient evidence to sustain a finding of guilt this prejudice in some way disappears is patently erroneous. Such a rationalization completely frustrates the will of the People as expressed in section 13 of article I of the Constitution and in the quoted sections of the Penal Code. Under the reasoning of respondent there never could be reversible error no matter how long the trial has been delayed, as long as the prosecutor introduces substantial evidence of guilt, and the statute of limitations has not run on the offense or a witness has not died. Section 13 of article I is just as important as section 4% of article VI. Section 13 of article I refers to a specific subject matter and so obviously prevails over the general language of section 4% of article VI. The only proper and legal way to enforce the constitutional and statutory right of defendant to a speedy-trial, where the defendant properly preserves the right, is to presume prejudice as a matter of law.
The right here involved is not a mere procedural one. It is a basic—a fundamental—right—one that may be waived, and one that must be asserted, but a basic fundamental right nevertheless. It is an integral part of the right to a fair trial. As early as 1901 in the case of In re Begerow, supra, 133 Cal. 349, a leading case where habeas corpus was used to dismiss a prosecution for murder because not brought to trial within 60 days of a mistrial, this court described the right as follows (p. 352): “It is well to remember that this case involves fundamental rights, and is of universal interest. Around those rights the English have waged their great battle for liberty.” In Harris v. Municipal Court, supra, 209 Cal. 55, 60, the right is referred to as this “fundamental right granted to the accused. ’ ’ This description of the nature of the right is also stated or implied in practically every one of the cases heretofore cited describing the nature of the right to a speedy trial.
It is elementary that article VI, section 4%, has no application to fundamental rights. People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243], the leading recent ease on the application of article VI, section 4%, expressly recognized that: “[C]ertain fundamental rights, however, are guaranteed to the defendant upon which he can insist regardless of the *163state of the evidence, ...” These “fundamental” rights are generally recognized as the right to a jury trial and the right to a fair trial. There are many cases so holding.4
In People v. Gaines, 58 Cal.2d 630, 642 [25 Cal.Rptr. 448, 375 P.2d 296], Justice Traynor, in a dissenting opinion, stated the principle very clearly: “Error that results in the deprivation of a basic right necessarily requires reversal to preclude prejudice to the judicial process and to the procedural rights of a litigant even though there might be equally fair alternatives consonant with due process. ’ ’
This statement, which, it is true, appears in a dissenting opinion, is supported by many eases. In People v. Rogers, 56 Cal.2d 301 [14 Cal.Rptr. 660, 363 P.2d 892], it was held that article VI, section 4%, had no application, regardless of the sufficiency of the evidence, to the failure to secure a personal participation by defendant in the withdrawal of the plea of not guilty. People v. Brommel, 56 Cal.2d 629, 634 [15 Cal.Rptr. 909, 364 P.2d 845], held that, “. . . the admission of involuntary confessions compels a reversal, and section 4%, article VI, of the Constitution can under no circumstances save the judgment.” (See also People v. Trout, 54 Cal.2d 576 [6 Cal.Rptr. 759, 354 P.2d 231].)
In Spector v. Superior Court, 55 Cal.2d 839, 844 [13 Cal.Rptr. 189, 361 P.2d 909], it was held that the refusal of the trial judge to permit the presentation of evidence or the making of an argument in support of a motion amounts “. . . to a deprival of a substantial statutory right and is not covered by article VI, section 4%, of the Constitution.”
Denial of any basic element of a jury trial, when defendant did not personally waive, in spite of the nature of the evidence, requires a reversal, regardless of prejudice.
In People v. Sarazzawski, 27 Cal.2d 7 [161 P.2d 934], the denial of a reasonable opportunity to present and argue a motion for a new trial was held to be a substantial denial of a statutory right requiring a reversal regardless of prejudice. At page 19 it was stated that article VI, section 4%, “does not contemplate a situation where defendant ‘without fault has been denied an opportunity to determine whether or not he has been prejudicially injured. ’ ’ ’
*164In People v. Hall, 199 Cal. 451 [249 P. 859], where an error in imposing the death penalty was claimed to be nonprejudicial this court said (p. 458): “The amendment by which said section 4% was added to the constitution was not ‘designed to repeal or abrogate the guarantees accorded persons accused of crime by other parts of the same constitution, or to overthrow all statutory rules of procedure and evidence in criminal cases’ [citations]. Trial by jury is guaranteed to every person charged with a felony and the denial of that right is in itself a miscarriage of justice.”
In People v. Mahoney, 201 Cal. 618, 627 [258 P. 607], it is stated: “When, as in this case, the trial court persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense, it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary. Neither can a plea for the application of the section of the constitution [art. VI, § 4%] save this situation. The fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has been no miscarriage of justice. In this case the defendant did not have the fair trial guaranteed to him by law and the constitution.” (See also People v. Mason, 72 Cal.App.2d 699 [165 P.2d 481]; People v. Hooper, 92 Cal.App.2d 524 [207 P.2d 117].)
In People v. Duvernay, 43 Cal.App.2d 823 [111 P.2d 659], there was misconduct on the part of the prosecutor. It was held that this may warrant reversal in spite of convincing proof of the defendant’s guilt.
In People v. Diaz, 105 Cal.App.2d 690 [234 P.2d 300], it was held that denial of the right to exercise a peremptory challenge to a member of the regular jury panel deprives the defendant of a fair and impartial jury trial, and that article VI, section 4%> is not applicable. (See also People v. Wismer, 58 Cal.App.679 [209 P. 259].)
In People v. Patubo, 9 Cal.2d 537 [71 P.2d 270, 113 A.L.R. 1303], it was held that misconduct of a trial court judge indicating he thought that defendant was guilty of first degree murder and could not be believed was an invasion of the province of the jury and thus required a reversal regardless of the terms of article VI, section 4%.
In People v. Carmichael, 198 Cal. 534 [246 P. 62], the *165defendant was refused an opportunity to question prospective jurors on the effect that it might have in their attitude that a prior jury had failed to agree on a verdict and was discharged. The question was held to go to the jury’s bias and was therefore proper. This court stated at page 547: “The ruling of the court in thus limiting the appellant in his examination of the jurors was . . . the deprival of the appellant of a fundamental right,—a right to be tried by an impartial jury. It was never intended by . . . (art. VI, § 4%] to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right [citation]. ’ ’
A most important case in this respect is the recent case of People v. Elliot, 54 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225], There a committing magistrate allowed, over objection, unauthorized persons to remain in the courtroom during a preliminary hearing in violation of the statutory rights of the defendant. Thereafter, the defendant was tried, and on substantial evidence convicted. This case is very similar to the instant one. Because unauthorized persons were allowed in the courtroom, the commitment was voidable and subject to being set aside by proper motion which was made and erroneously denied. The right involved was statutory and had no relation to guilt or innocence. In the instant case, by reason of the unauthorized delay, defendant’s constitutional and statutory rights were invaded, the charge against him was subject to being dismissed upon motion, such motion was made, the duty to dismiss was mandatory, but the trial court erroneously denied it. In neither case did the error relate to the guilt or innocence of the defendant, or to merits of the charge. In both cases convincing evidence of guilt was introduced at the trial. In the Elliot case the statutory right to exclude unauthorized persons, and in this case the constitutional and statutory right to a speedy trial, were part of defendant’s right to a fair trial. In Elliot, the right involved was described as “substantial” (p. 503). Here the right, as stated in Begerow (supra, 133 Cal. 349, 352), was “fundamental.” In both cases the duty of the trial court to dismiss was mandatory. In Elliot it was held (p. 505): “Nor was it necessary for the accused to show actual prejudice caused by the denial of her rights. . . . Prejudice must be presumed. Obviously, if actual prejudice must be shown, the guarantee would become meaningless.” The ma*166jority in the instant case come to a diametrically opposed conclusion. If Elliot is sound in this respect, the conclusion of the majority here is unsound. The majority have, in legal effect, overruled Elliot.
In Elliot this court discussed article VI, section 4%, in the following language (pp. 506-507):
“Article VI, section 4%, of the Constitution, cannot operate so as to save this conviction. When a defendant has been denied a fair trial prejudice must be presumed. Nor can a fair trial in the superior court cure the errors of the committing magistrate and of the superior court judge in permitting the trial to take place. . . .
“In People v. Sarazzawski, 27 Cal.2d 7 [161 P.2d 934], a judgment imposing the death penalty was reversed, even though the evidence amply supported the verdict and judgment, because of errors tending to deprive the defendant of certain elements of a fair trial. These errors, as is true in the instant case, had nothing to do with the merits of the case. One error was in telling counsel that argument on the motion for the new trial would be had on October 16th, and then requiring counsel to argue the motion on October 6th, when the motion was filed. The other error consisted in telling the jurors that if they honestly answered questions on their voir dire but forgot some possible ground of disqualification and remembered it after the trial started, they should keep the matter secret and not tell the judge about it. These errors were held to have denied appellant some of the elements of a fair trial. The court said (p. 11): ‘When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section 4% of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand. [Citing four cases.] That section was not designed to “abrogate the guaranties accorded persons accused of crime by other parts of the same constitution or to overthrow all statutory rules of procedure and evidence in criminal cases. When we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.” (People v. O’Bryan, 165 Cal. 55, 65 [130 P. 1042].)’
*167“It must be remembered that here we have a mandatory statute that admittedly has been violated. Unless the error can be reached on appeal from the judgment it cannot be reached at all even though the superior court erroneously denied a motion under section 995 of the Penal Code and the appellate court erroneously denied the application for a writ. To agree with respondent would, in effect, be to write the statute off the books. ’ ’
Everything said in Elliot is directly applicable here. The attempt by the majority to distinguish this case is completely ineffectual.
There are several cases that directly hold that, after trial, on appeal the charges must be dismissed if the right to a speedy trial is denied, and if the defendant, as here, properly asserts that right.
People v. Echols, supra, 125 Cal.App.2d 810, is such a case. This is a unanimous decision of the First Appellate District, Division One, in which this court denied a hearing. There, over defendant’s objections, a trial was set for 50 days beyond the 60-day limit set forth in section 1382 of the Penal Code. Defendants' motion to dismiss was erroneously denied. Trial was had and defendants were convicted and appealed. The judgments were reversed and the trial court directed to dismiss the action. The reasoning of the court was much the same as set forth in this dissent.
People v. Fegelman, supra, 66 Cal.App.2d 950, was a unanimous opinion of the Second Appellate District, Division Two, written by Justice McComb, then a member of that court. A petition for hearing was denied. Here, without good cause, a trial was continued for several days beyond the 60-day period. Defendant moved to dismiss. The motion was denied. Defendant was tried and convicted and appealed. The court held that the trial court was under a mandatory duty to dismiss, and that (p. 955) “A defendant is not to be deprived of his constitutional rights by the improper action of a trial judge in pretending that matters which he has in chambers, as indicated by the trial judge in the instant case, will prevent a trial within the statutory period nor by the judge’s effort to coerce defendant’s counsel into consenting to a continuance beyond the statutory period.” The judgment of conviction was reversed, and the trial court directed to dismiss the accusation.
People v. Angelopoulos, 30 Cal.App.2d 538 [86 P.2d 873], is a similar opinion by the Third Appellate District. There *168the defendant, with others, was charged with arson and defrauding an insurance company. The first trial resulted in a disagreement. Two of the defendants requested a delay beyond 60 days from the time of reversal, but defendant Condos insisted on going to trial within the 60 days. The case was set for trial, and tried about 30 days beyond the 60-day limit, and all three defendants were convicted and appealed. The judgment was reversed as to all three defendants and as to defendant Condos the trial court was directed to dismiss the action solely because of violation of his right to a “speedy” trial. In deciding this point the court stated (p. 543): “When the defendant has not consented to a continuance of the cause against him, and the prosecution fails to show good cause therefor, upon motion of the accused person it is mandatory upon the court to dismiss the action when more than sixty days have elapsed without bringing the case to trial. Under such circumstances the court has no discretion to deny the motion. [Citing cases.] Article I, section 13, of the Constitution of California guarantees an accused person a speedy trial. That constitutional provision is construed by section 1382 of the Penal Code to limit the time within which the trial must be had to a period of sixty days, unless by the defendant’s conduct or acquiescence he consents to extend that time, except when the business of the court, the illness of the judge, or some other good reason for delay prevents the trial during that period of time. In the ease of Ford v. Superior Court, 17 Cal.App. 1 [118 P. 96], it is said:
“ “The statute is a construction of the constitutional provision so far as to indicate what is a reasonable time within which the case should be brought to trial in order that the constitutional guaranty may be kept; and it may be fairly interpreted to mean that this guaranty is violated whenever sixty days is allowed to elapse without a trial, there being no good reason for delay and the defendant not consenting thereto. It is sufficient for the defendant, in order to make out his case upon a motion for a dismissal in the trial court, to show that he has been detained without a trial for more than sixty days. ” ’ ” And again on pages 544-545 :
“It is not necessary for the defendant to affirmatively show that he was prejudiced by a continuance of trial beyond the sixty-day period prescribed by statute. The constitutional provision and section 1382 of the Penal Code absolutely guarantee an accused person a speedy trial unless good cause for denying it is first shown. Prejudice to the defendant is presumed from the violation of that guaranty. The burden *169is on the prosecution to show good cause for the delay when a motion for dismissal of the action is made on that account. (Harris v. Municipal Court, 209 Cal. 55, 64 [285 P. 699].)
“The validity of the order denying a defendant’s motion to dismiss a criminal action against him for failure to award him a speedy trial, may be challenged on appeal from a judgment of conviction. The order refusing to dismiss the information is not separately appealable. It may be reviewed on appeal from a subsequent judgment of conviction. (Matter of Ford, 160 Cal. 334, 348 [116 P. 757, Ann. Cas. 1912 D 1267, 35 L.R.A. N.S. 882] ; 8 Cal.Jur. 209, sec. 280.) The continuance of a trial beyond the statutory limitation of time, over the objection of a codefendant, for the mere convenience of his associate, is a denial of a speedy trial to the objector, and under such circumstances, upon his motion under section 1382 of the Penal Code, it is mandatory for the court to dismiss the action against such objector.” (See also People v. Perea, 96 Cal.App. 183 [273 P. 836], a decision by the Second Appellate District, Division One.)
The majority opinion in the present case simply refers to these cases, and, without analysis, declares that “Statements or implications to the contrary” in these four cases “are disapproved.” It is submitted that these cases correctly decided the issues involved, and that their views should be approved and followed. It is of some significance that the majority do not cite even one case to the contrary.
The trial court should be directed to dismiss the action against defendant. Such a dismissal would not mean that defendant could not be proceeded against, at least on the murder charge, in a proper fashion. There being no statute of limitations as to murder, the prosecution may file another information charging that offense, or present the matter to the grand jury for a new indictment. The dismissal is not a bar to a new prosecution for the same offenses. Section 1387 of the Penal Code, found in the same chapter as section 1382, provides: “An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.” Many states have a substantially similar provision. Under such a statutory pattern the courts have generally held that a further prosecution after dismissal for delay in the prosecution of a felony is proper. (See annotation entitled “Discharge of accused for holding *170him excessive time without trial as bar to subsequent prosecution for same offense” in 50 A.L.R.2d 943, particularly cases collected at pages 947-951; but see People v. Wilson, 8 N.Y. 2d 391, 208 N.Y.S.2d 963 [171 N.E.2d 310].) This rule applies whether the dismissal is before or after trial. The leading case in California is In re Begerow, 136 Cal. 293 [68 P. 773, 56 L.R.A. 528], There the defendant was tried for murder five times. Each time the jury disagreed. He was not brought to trial within 60 days of the discharge of the last jury, and defendant asked for a dismissal on that ground. Belief was denied. On habeas corpus the prosecution was dismissed and he was ordered released from custody. Immediately a new complaint charging the same offense was filed. Defendant claimed jeopardy. This court held the claim untenable in view of section 1387 of the Penal Code. This case was in accord with the earlier case of Ex parte Clarke, 54 Cal. 412 (also a murder case). Later cases have reaffirmed the Begerow case (People v. Godlewski, 22 Cal.2d 677 [140 P.2d 381]; People v. Dawson, 210 Cal. 366 [292 P. 267]; People v. Palassou, 14 Cal.App. 123 [111 P. 109]; People v. Grace, 88 Cal.App. 222 [263 P. 306]; People v. Vacca, 132 Cal.App.2d 8 [281 P.2d 315]). In view of the record this would be a proper case to institute a new proceeding against defendant.
I agree with the majority that the trial court committed serious error in permitting the prosecution to introduce into evidence the offers to plead guilty to manslaughter and to second degree murder. In view of the record, however, this error alone was not prejudicial.
The conviction of defendant should be reversed, and the trial court should be directed to dismiss the action.
Tobriner, J., concurred.
The majority question whether a proper application was filed in the appellate court, because, so it is asserted, the clerk’s transcript at that time erroneously showed that on August 25, 1960, defendant had waived the time limits, and the clerk’s transcript was not corrected until after the appellate court had acted. The fact is that the clerk’s transcript was not before the appellate court. An examination of the record in that mandamus proceeding shows that the petition clearly alleged a demand on August 25, 1960, to go to trial on that date, and expressly and unequivocally denied the existence of a waiver or estoppel. As an exhibit to the petition, excerpts from the reporter’s transcript were attached which clearly show no waiver and estoppel. On the record before it there can be no doubt that the appellate court incorrectly denied the application for the writ.
Perry & Cooper (1959) Sources of Our Liberties (Am. Bar Foundation) contains copies and commentaries upon these documents.
This section piovid.es that no judgment shall be set aside “on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure” unless the court believes a miscarriage of justice has occurred.
The ease of People v. O’Bryan, 165 Cal. 55 [130 P. 1042], is frequently cited as holding that article VI, section 4%, may be applicable to “constitutional” rights. That ease so held, but there the defendant had waived the constitutional right involved—not to be a witness against himself—by fully testifying, voluntarily, at his trial.