In Re Mooney

6 Cal.App.2d 730 (1935) In the Matter of the Application of THOMAS J. MOONEY for a Writ of Habeas Corpus.

Crim. No. 1846. California Court of Appeals. First Appellate District, Division One.

May 14, 1935. Frank P. Walsh, John F. Finnerty and George T. Davis for Petitioner.

No appearance for Respondent.

Tyler, J.

Habeas corpus. Petitioner has applied to this court for a writ of habeas corpus. A similar petition was presented to the Superior Court in and for the County of Marin and was denied.

[1] Petitioner was regularly convicted of the crime of murder. The judgment of conviction was subsequently affirmed on appeal and it became final. It is claimed in the instant proceeding that the judgment of conviction was procured without due process of law and in violation of the fourteenth amendment of the Constitution of the United States by reason of the alleged fact that it was obtained through perjured testimony, which testimony was known by the prosecuting officers at the time it was presented to be perjured. This precise question has been before the Supreme Court of this state under various petitions and that court has uniformly held that a judgment cannot be set aside upon the ground that it is predicated upon perjured testimony or because material evidence is concealed or suppressed; that fraud so practiced both on the state and on him against whom the judgment is pronounced is not such fraud as is extrinsic to the record; and that it is only in cases of extrinsic fraud that such relief may be had. The remedy in such a case, says the Supreme Court, rests only with the Governor of the state under his pardoning power, and he alone can afford relief. (People v. Mooney, 175 Cal. 666 [166 P. 999]; Id., 176 Cal. 105 [167 P. 696]; Id., 177 Cal. 642 [171 P. 690]; Id., 178 Cal. 525 [174 P. 325].) Since the rendition of the decisions in these cases, petitioner herein has applied to the Supreme Court of the United States for a writ of habeas [732] corpus upon the identical grounds as are here alleged. (Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406].) This petition was denied without prejudice, and the present application is based upon language used in the decision in that proceeding. To adopt the construction of that language, as contended for by counsel for petitioner, would compel the granting of a writ of habeas corpus by this court upon the grounds set forth in the petition, which action would overrule the decisions of our Supreme Court above cited, by which this court is obviously bound. We do not, however, agree with the contention of counsel as to the effect of the decision in the case of Mooney v. Holohan, above cited. It follows, therefore, that if by reason of the decision of the Supreme Court of the United States there shall be a departure from the established legal doctrine declared by the Supreme Court of this state in the cases above cited, such departure must necessarily have its origin in that court.