Rucker

The defendant was charged with a violation of the Narcotic and Drug Act (see Deering’s Supp. to Codes & Gen. Laws, 1929, p. 3542), and also with a prior conviction of burglary. He admitted the prior conviction, but entered a plea of not guilty to the charge of violating the Narcotic and Drug Act. He was found guilty and sentenced. He appeals from the judgment and order denying his motion for a new trial.

Four asserted reasons why we should order a reversal are advanced. They are as follows: 1. That appellant was not brought to trial within the sixty-day period fixed by section 1382 of the Penal Code; 2. That appellant was entrapped to sell a narcotic; 3. That the evidence is insufficient in a certain particular; and 4. That the district attorney and the trial judge were both guilty of misconduct.

The first contention is untenable under the authority of Ray v. Superior Court, 208 Cal. 357 [ 281 Pac. 391 ], wherein it was held that defendant’s consent that the trial be set beyond the sixty-day period is equivalent to a postponement upon his own application. While the appellant stoutly insists that he did not consent to the date fixed beyond the period in the instant case, yet we…