Dyer

Defendant was convicted of the crime of rape. There was a judgment of imprisonment and an order denying a motion for a new trial. The appeal is taken from the judgment and from the order.

But two principal propositions are presented for consideration in determining the merits of the appeal. It is first contended that the court erred in denying defendant’s motion to dismiss the information and discharge the defendant from custody because he had not been brought to trial within sixty days after the date of a mistrial which had theretofore occurred. The point is urged in reliance upon section 1382 of the Penal Code. The facts were that on the twentieth day of May, after considering the evidence introduced at the trial of ‘ defendant, the jury disagreed and the case was then reset for second trial for the thirtieth day of June, 1914. On the latter date the district attorney moved for a continuance of the trial to another date on the ground of the absence of material witnesses. The case was finally reset for the twentieth day of July, which counsel contends was in violation of the right of defendant to be tried within sixty days after the filing of the information, or after a trial…