In Re Bathurst

This is an application of Benjamin Elconin on behalf of Diana Bathurst for the writ of habeas corpus. From the petition, the return thereto, and the findings of this court upon evidence taken, we may state the following situation: Diana Bathurst was tried upon a charge of petty theft before the municipal court of Los Angeles on July 9, 1928, and there found guilty. The trial court on July 11th sentenced the defendant to 180 days in the city jail, suspending the sentence as to 150 days thereof. The petitioner contends that he presented a motion for a new trial prior to pronouncement of sentence, but from the evidence adduced we have found that the motion for a new trial was not presented until after judgment. Some time subsequent to the pronouncement of sentence and in the afternoon of the same day counsel served upon the city prosecutor a written motion for a new trial, which bears no filing mark, and which appears to have been called to the attention of the court on July 13, 1928, at which date it was set for hearing for July 16, 1928. After argument of the motion it was granted and the cause was transferred to another division of the court for retrial. When the cause was called…