People v. Knight

MOORE, P. J.

Appellant having been convicted at Los Angeles in 1940 of robbery with a deadly weapon, with a prior conviction of murder, his appeal was affirmed by this court May 19, 1941. (44 Cal.App.2d 887 [113 P.2d 226].) Two years after such affirmance he petitioned the Third District Court of Appeal for a writ of habeas corpus on the ground that his conviction had been obtained by the use of perjured

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testimony. His petition was denied on January 27, 1944, and a hearing was duly denied by the Supreme Court on February 10, 1944. (62 Cal.App.2d 582 [144 P.2d 882].) On August 13, 1945, he filed his “Motion, In the Nature of the "Writ of Error Coram Nobis.” It was heard by the court below and denied October 2, 1945. This appeal is from such denial.

The motion was accompanied by an ex parte affidavit of attorney Paul Tapley which sets forth a statement allegedly made to him on April 19, 1941, by one Braulio Galindo, a fellow inmate of appellant in Folsom penitentiary. Galindo thereby purportedly confessed that he is the party who on June 24, 1940, committed the crime for which appellant had been convicted. An extrajudicial confession is weak enough when made before an officer empowered to administer the oath, but when voluntarily reported by a person to whom it was voluntarily made it does not rise to the dignity of a legal document worthy of serious consideration. Moreover, in this instance whatever value the “confession” may have had in the service of appellant it was already stale when Tapley deposed before the notary on March 6, 1944.

Further to support the motion, on the day of the argument attorney A. Brigham Bose presented his own affidavit to “amplify and supplement the moving papers.” By this document the affiant attempted by a review of the incidents occurring at the trial of appellant to show that the latter did not have a “fair and impartial trial.” It is averred that ap: pellant was prejudiced by the questions of the prosecuting attorney repeatedly propounded to the prospective jurors on their voir dire examination; that appellant’s acting counsel “by the form of plea interposed” made the prior conviction of appellant for murder “ the important subject of inquiry”; that appellant was “deprived of procedural due process” by failure of his former counsel to advise him with respect to his “admission or denial of a prior conviction,” and the legislative safeguards for the protection of appellant’s rights “were frittered away”; that appellant was prejudiced by the opening statement of the district attorney that he expected to prove that “defendant had boasted of killing some 16 or 18 people,” in that it made the subject of prior conviction “the important issue in the ease before the jury had even been selected”; that the victim of the robbery immediately after the crime “failed to hint, suggest or identify the defendant ... as the perpetrator of the crime but . . . described a person then and