Martin

In support of his appeal from a judgment entered upon conviction of second degree burglary, with three priors, defendant Jack Martin urges a number of points.

He says there was no sworn complaint and no preliminary hearing. Counsel for the state says there were. The record is silent. In such a case there is a presumption that the information was regularly issued, hence was preceded by a sworn complaint and a preliminary hearing. Moreover, this is a point which a defendant is precluded from making except by timely motion to set the information aside, as provided in section 996 of the Penal Code. (In re Razutis, 35 Cal.2d 532, 534 [ 219 P.2d 15 ] and cases there’cited.) It comes too late now.

Defendant assigns error because his trial did not start within the 60-day period prescribed by section 1382 of the Penal Code. But the clerk’s transcript shows that on the very day the information was filed (December 24, 1953) defendant appeared in court and personally waived “his statutory time to an early trial date.” Thereupon, the court set the trial for March 9, 1954, at which time it in fact commenced and then proceeded, without objection upon the part of the defendant. He is in no…