People v. Ellis

BARNARD, P. J.

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

coram nobis.

The appellant and one Erskine entered a home near San Diego at 1 o’clock in the morning and held up five occupants at the point of a gun, one shot being fired to show “We mean business. ’ ’ They took certain money and other articles and also took an automobile from the garage, in which to leave. They were tried together and convicted of robbery and grand

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theft, judgment being pronounced on June 16, 1949. Erskine appealed, and the judgment as to him was affirmed by this court. This appellant, who had not appealed, filed a

coram nobis

petition on March 27, 1950, which was denied. On this appeal from that order he filed his own briefs but, at his request, this court appointed his present attorney who ably presented the matter here.

It is first contended that the court abused its discretion in denying this writ “upon the presumption” that the judgment against the appellant had been appealed and affirmed. The record shows the exact contrary; that the trial judge knew that Erskine alone had appealed; and that a hearing was had at which everything submitted was considered.

It is further contended that the trial court erred in rulings on law at the trial which resulted in a miscarriage of justice, and that appellant’s conviction was the direct result of collusion, conspiracy, fraud and perjury, as shown by the “numerous instances” alleged in the petition by reference to the transcript of the trial. In this connection, it is contended that the judge repeatedly showed bias and prejudice in his rulings; that one witness was not excluded from the courtroom; that his motion for a separate trial was denied; that he was prejudiced because the criminal record of his codefendant was brought out; that no effort was made at any time by his counsel or the judge to protect his rights; that his attorney was negligent in not letting him take the stand and in failing to move for a new trial; that the district attorney prejudicially referred to him as an ex-convict; that he thought at the time, and still thinks, that one juror was substituted for another during the first recess; that he was identified as one of the robbers only vaguely and by hearsay; and that he was denied an attorney at his preliminary hearing.