People v. Bailey

ADAMS, P. J.

This is an appeal from a judgment rendered by the Superior Court of Stanislaus County, denying a petition for a writ of error

coram nobis

filed by appellant in which proceeding petitioner sought an order setting aside a judgment convicting him of forcible rape, on October 16, 1945, alleging that at his trial he had been ‘ ‘ deprived of substantial rights and due process of law,” and that the judgment was void on its face for uncertainty.

The record shows that on the trial for rape petitioner was represented by Mr. Brack, counsel appointed by the court, and that no appeal was taken from the judgment, nor any motion for a new trial made. At the proceeding for writ of error

coram nobis,

filed a year later, petitioner was represented by counsel of his own choosing. On this appeal he appears in propria persona, asserting, as grounds for reversal, that at his trial on the rape charge he was denied equal protection of the law because the court refused to subpoena witnesses on his behalf, and because he was denied the right to question further the complaining witness; that he was convicted on inconsistent testimony; that the district attorney was guilty of prejudicial misconduct; that the jury was prejudiced by an erroneous instruction; and that his counsel was negligent and incompetent.

Regarding the first of these contentions the record of the trial on the rape charge (which record was introduced in

[580]

evidence in the

coram nobis

proceeding) shows that the complaining witness was a “hitch-hiker” who was picked up by Bailey when he and a friend by the name of Dow Pierce were driving in Bailey’s car from Stockton to Modesto in the nighttime; that while Pierce was asleep in the back seat Bailey stopped the ear, dragged the woman to an orchard and there raped her. At the trial on that charge defendant did not produce Pierce as a witness, and he contends that his inability to do so was because the trial court refused to issue a subpoena for him. However, on the