Chrisman

Petitioner seeks by mandamus to compel the superior court of the county of Fresno to dismiss a criminal prosecution pending against him. Petitioner was indicted for felonies, to wit: grand larceny, embezzlement, and obtaining money by false pretenses. The cause was assigned for trial to a department of the superior court presided over by Honorable J. E. Woolley, as judge thereof, one of the respondents herein, and the cause is still pending in said court before said judge. After arraignment of petitioner the cause was regularly set for trial on the 26th of June, 1922, but a trial was not then had for the reason that petitioner had upon said date secured from this court an alternative writ of prohibition, arresting the trial. On the tenth day of October, 1922, a hearing was had by this court upon the alternative writ, when a peremptory writ was denied and the alternative writ discharged. ( 59 Cal.App. 305 [ 210 P. 632 ].) A petition to have said cause heard and determined after decision by this court was thereafter, and on the tenth day of December, 1922, denied by the supreme court. The petition herein alleges that petitioner has not been brought to trial within sixty days after…

In denying the petition for a rehearing we call attention to the fact that although the judge of the trial court in denying the motion to dismiss acted upon his own knowledge of the facts and perhaps upon the assertions of the district attorney not put in the form of an affidavit or verified by oath, nevertheless upon the application for the writ of mandate in the district court of appeal, the evidence supporting the conclusion of the trial judge that there was good cause for the delay in the trial of the case was supported not only by the affidavit of the trial judge verifying his answer in the matter, but also by three affidavits of district attorney deputies to the effect that the plaintiff waived the delay and asked for the continuances in the setting of the case for trial which were acceded to by the district attorney. [2] The writ of mandate is not a writ of error to review the action of the trial court in refusing to dismiss the criminal action, but is an original proceeding to be determined upon its merits. It is true that as a prerequisite to the application for the writ of mandate it must be shown that the more speedy remedy of a motion in the trial court has been…