People v. Chapman

ADAMS, P. J.

Appellant Chapman was convicted by a jury in the Superior Court of Tuolumne County on two counts, robbery while armed with a deadly weapon, and assault by means of force likely to produce great bodily harm. He appealed from the judgment and same was affirmed by this court.

(People

v.

Chapman,

91 Cal.App.2d 854 [206 P.2d 4].) A hearing was denied by the Supreme Court.

In September, 1949, Chapman filed in the Superior Court of Tuolumne County what he designated as a motion to annul, vacate and set aside the aforesaid judgment “and/or petition for writ of coram nobis or writ of error, ’ ’ alleging, as grounds therefor: (1) that his prosecution on the two counts had placed him in double jeopardy; (2) that the testimony of Donald Larios, his codefendant, charges against whom had been dismissed during the trial so he could testify against Chapman, was inadmissible for the reason that he had been promised immunity in return for said testimony; (3) that the trial court committed error in allowing the jury to separate during the trial; (4) that it was prejudicial misconduct to assign as bailiffs in charge of the jury two officers who had taken part in the investigation of the crime; (5) that defendant was denied the right to trial by an impartial jury when he was prosecuted by a district attorney who practices civil law in addition to his duties as district attorney; (6) that the trial was not conducted according to law or due process in that defendant was not personally present during the entire trial proceedings; (7) that the district attorney was guilty of prejudicial misconduct in commenting, during his argument to the jury, on the failure of defendant to testify in his own behalf; (8) that the district attorney was further guilty of prejudicial misconduct in charging the jury as to matters of fact; (9) that the verdict and judgment are void for uncertainty; and (10) that the verdict is contrary to the evidence. In a supplement to the motion, which he filed October 26, 1949, it was

[670]

alleged that the court erred in giving a certain instruction; and in an additional supplement filed November 14, 1949, he set up: (11) that one member of the jury voted not guilty, though he admits that the jury was polled, and that the verdict should have been failure to agree; (12) that the court erred in refusing to inquire into whether or not the jury received evidence out of court; and (13) that the testimony of Audrey Larios (defendant’s daughter) was inadmissible under section 1322 of the Penal Code.