People v. Martorana

FOX, J.

Defendant was convicted on February 7, 1952, of assault with intent to commit rape. His motion for a new trial was denied. He did not appeal.

In November, 1952, defendant filed an application for writ of error

coram nobis

together with a notice of motion therefor. He appeals from the order denying his petition.

Defendant’s application was based upon the asserted ground that a fraud had been perpetrated upon the court in that one of defendant’s witnesses, George R. Hubbard, had been prevented from testifying at his trial. From the affidavits in support of defendant’s application it appears that Mr. Hubbard had had some conversations with the complaining witness and that she had made statements to him which would be advantageous to defendant’s defense. Hubbard was a friend of defendant and indicated his willingness to testify in his behalf. It further appears that Hubbard was a defendant in a civil action in the Los Angeles Municipal Court which went to trial on February 6, 1952. The time estimated by plaintiff’s counsel for the trial of this civil case was less than one day. It required, however, two days. Hubbard met defendant at noon on the 7th and told defendant he would testify for him that afternoon, after his case was concluded,

[334]

“shortly after the noon recess.” It is asserted that the attorney for the plaintiff in the civil action against Hubbard was also attorney for the complaining witness in the criminal case; that he contemplated filing, and did later file, an action for damages in behalf of the complaining witness against the defendant herein; that the attorney knew Hubbard “was interested” in the criminal ease; and that Hubbard’s civil trial was “unduly prolonged” by this attorney to prevent him from testifying on behalf of defendant. Hubbard was not under subpoena. It is also stated that Hubbard was prevented from testifying because of the failure of Judge Fricke to grant a short recess in which to bring him in to testify. The two trials were being conducted in near-by buildings in Los Angeles.

Defendant fails, to make any substantial showing for setting aside his conviction. His affidavit does not state that the attorney in Hubbard’s civil action knew that Hubbard was expected to be a witness in the criminal case. Defendant’s present attorney says the other lawyer told him he knew Hubbard was “interested in” the criminal matter. That, of course, does not mean that he understood that Hubbard was to be a witness for defendant. It is stated in defendant’s affidavit that “investigation has revealed that the trial in which Mr. Hubbard was involved was unduly prolonged by said attorney ... in an attempt to prevent Mr. Hubbard from testifying on behalf of the affiant herein.” Just how this was done is not stated. It does not appear that Hubbard was on the witness stand all afternoon, or that his personal presence was otherwise continuously required in the trial of his civil ease, or that he asked to be excused so that he might testify for defendant, or that he requested a recess for that purpose, and that any such request was objected to or refused. In connection with the last quoted statement from defendant’s affidavit it may be appropriately observed that “Neither the trial court nor the - appellate court is bound ‘to accept at face value the allegations of the petition’ for the writ.”