Application of C.S. Duvall for writ of mandamus against W.F. Freeman, Judge of the Eighth Judicial District. Writ denied.

John B. Ogden, for petitioner.

The Attorney General, for respondent.

BESSEY, P.J. The petitioner stands charged in the district court of Carter county with the crime of embezzlement, and claims in this application that the judge of said court, the respondent herein, has arbitrarily refused the accused a speedy trial, as provided by law; and that said judge has refused to make and enter an order of dismissal of the embezzlement charge, under the provisions of section 2913, C.O.S. 1921, which provides that:

"If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown."

The petitioner asks for a peremptory writ of mandamus requiring the district judge of Carter county to dismiss the action against petitioner, under the provisions of the statute quoted.

The application and the evidence attached thereto, filed in this court, do not show facts sufficient to authorize the issuance of the writ. The record in the embezzlement case is not before us. No showing is made of the time when the information was filed in the district court. By secondary evidence it appears that for a time the accused was, or may have been, a fugitive from justice;

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that he filed an application for a continuance at the April term of district court, but no showing is made as to what if any order was made thereupon; that over the protest of the petitioner an informal order of continuance was made two days after the petitioner's motion for a continuance was filed.

Under such circumstances, in the absence of the record in the embezzlement case showing what was actually done, the showing made is insufficient.

The application for the writ is denied.

DOYLE and EDWARDS, JJ., concur.