People v. Kirk

MARKS, J.

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

coram nobis.

Defendant seeks reversal of the order on three grounds: (1) That the clerk’s transcript on appeal (the only transcript before us) is defective in that it is not certified to by the trial judge. (2) That the trial court abused its discretion in failing to order defendant’s return from Folsom Penitentiary, where he was confined, to present and argue his petition as he was appearing in propria persona. (3) That the trial judge abused his discretion in denying the petition because it was established by an uncontradicted affidavit that defendant’s conviction was secured through the perjured testimony of one Harry J. Baker at the solicitation and with the knowledge and connivance of the District Attorney and Sheriff of San Bernardino County. We will consider the questions presented in the order stated.

As filed here, the clerk’s transcript did not contain any certification by the trial judge as required by subdivision (e) of rule 35 of Rules on Appeal. Such certification was necessary under the rule, assuming there were no proposed cor

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rections served and filed as stated by the attorney general. Defendant is the moving party, and the appellant, and a defective record cannot aid his cause. However, as he is confined in prison and cannot conveniently secure the correction, this court has had the proper certificate attached to the transcript.

The decision of the question of returning a person confined in a penitentiary, to court, to argue a petition for a writ of error

coram nobis,

should be within the sound discretion of the court in which it is to be heard. We find no breach of discretion in the ruling on this matter. Our reasons for this conclusion will appear in our discussion of the next question.

The third question argued presents other problems. It seems settled that a defendant is entitled to a review by independent process of the proceedings resulting in his conviction, “. . . if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured."