In Re Alpine , 203 Cal. 731 ( 1928 )

I dissent.

The plain effect of the majority opinion is to so weaken the case of In re Begerow, 133 Cal. 349 [85 Am. St. Rep. 178, 56 L.R.A. 513, 65 P. 828], as to pave the way for its early entire abrogation. I think that case is sound law and a proper interpretation of the rights guaranteed a human being under the constitution.

If the majority opinion be sound, after a lapse of sixty days from the finding of the indictment, the constitution does not come to the protection of the defendant. To apply the statute only to this sixty-day period and to refuse to apply it to a case where more than sixty days are allowed to elapse after a mistrial or after reversal on conviction, is to say that the longer a defendant is kept under indictment, the less right he has to a speedy determination of the charge against him. The following language of Judge Temple in the Begerow case is here squarely in point: "The imprisonment after the lapse of sixty days is just as oppressive, and, if unnecessary, as much a violation of the rights of the accused person, as within the sixty days. There is no reason why the legislature should be desirous of protecting the rights of an accused person for sixty days, and be indifferent to his fate afterwards. To attribute such ideas to the legislature, is to charge it with folly."

So far as the second division of the opinion is concerned, the recent amendment to the Penal Code (sec. 1506) providing an appeal by the people in certain classes of habeas corpus proceedings, is not before us. This section is full of ambiguity and uncertainty and should not be passed upon in this proceeding. Clearly the petitioner here is not in the status required for the invocation of any of its provisions as to him as he is not now under conviction for any offense.