People v. Cox

BARNARD, P. J.

This is an appeal from an order denying an application for a writ of error

coram nobis.

The defendant was charged in one action in the superior court with the crime of petit theft with a prior felony conviction, and pleaded guilty to that charge. In another action he was charged with the crime of robbery and three prior felony convictions. After a trial by jury, being represented by counsel, he was found guilty on that charge and the crime was fixed as robbery in the first degree. Judgment was entered on October 25, 1954, sentencing him to imprisonment on both charges, it being ordered that the sentence in the first of these actions run concurrently with the sentence in the other. No notice of appeal from that judgment was filed.

On May 10, 1955, the defendant filed a petition for writ of error

coram nobis.

Apparently, it was intended to relate only to the second action in which there was a jury trial. The district attorney filed a verified answer to this petition and the matter was heard on June 3, 1955, at which time several affidavits were received and considered by the court. The defendant was represented at that hearing by court appointed counsel. The petition was denied on June 9, 1955, and the defendant has appealed from that order.

The appellant first contends that he filed a notice of appeal on October 25, 1954. It is alleged in his petition that he filed this notice at that time by writing a letter to the clerk ‘1 and deposited the letter in the United States mails with the postage prepaid. ’ ’ It appears by the affidavit of the clerk that no such

[160]

notice was received. Moreover, any question as to whether an appeal was filed within the time allowed is not reviewable in this proceeding, since it must have occurred after judgment and would not have prevented a rendition of the judgment had it been known to the court.

It is next contended that the defendant was denied the right to have "compulsory process” to obtain witnesses in his favor. Not only could this matter have been corrected on motion for a new trial or by appeal, but there is nothing in the record to sustain this claim. The appellant attached to his brief an affidavit dated May 6, 1955, signed by a Mr. and Mrs. Booth stating that they would have been willing to testify that the appellant was at his own home at the time the crime was committed. There is also attached the affidavit of the appellant’s wife dated July 18, 1955, stating that the appellant was with her during the time the crime was committed. The latter affidavit was not even presented to the trial court, and Mr. and Mrs. Booth were next door neighbors of the appellant and his wife. No sufficient reason appears why such evidence was not produced at the proper time and, aside from its being merely cumulative, the matter is not reviewable in this proceeding. The fact that process was refused was also denied in one of the affidavits filed.