People v. Cook

NOURSE, P. J.

The defendant appeals from an order denying his motion to set aside a judgment convicting him following a trial by jury on an indictment charging the felony of embezzlement. The judgment was entered on March 5,

[285]

1948, and no appeal was taken therefrom. On October 13, 1948, he moved to vacate the judgment, attacking the regularity of the selection of the grand jury which returned the indictment; attacking the sufficiency of the evidence as failing to show that the crime was committed within three years prior to the return of the indictment; asserting that he could not be prosecuted for embezzlement until he had been adjudged an embezzler in the probate proceedings in the estate from which he was charged with having taken the funds, and also urging that the instructions to the jury do not appear in the record on file. All these matters could have been urged on a motion for a new trial or on an appeal from the judgment.

A motion to vacate a judgment is no more than a petition for a writ of error

coram nobis. (People

v.

Gilbert,

25 Cal.2d 422 [154 P.2d 657] ;

People

v.

Martinez,

88 Cal. App.2d 767 [199 P.2d 375] ;

People

v.

Adamson,

34 Cal.2d 320, 326 [210 P.2d 13].)

It does not lie “to correct an error of law, nor to redress an irregularity occurring at the trial that could be corrected on motion for new trial or by appeal.”

(People

v.

Martinez, supra,

771.)