People v. Malone

ADAMS, P. J.

.In October, 1948, appellant above named, after trial by jury, was convicted in the Superior Court of Stanislaus County of grand theft, and sentenced to state prison to serve the term fixed by law. No motion for a new

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trial was filed, nor was an appeal taken from said judgment. On June 15, 1949, Malone filed in the said superior court a petition for a writ of error

coram nobis,

alleging therein that he was being held in the custody of the warden of San Quentin Prison illegally because of errors committed by the trial court and misconduct of the district attorney during his trial, and because the evidence was insufficient to warrant his conviction.

The first alleged error of the trial court is that at the close of the evidence the jury was excused for eight days because of the death of a relative of one of the jurors, and that the jury was not charged until it returned and resumed its duties. The second alleged error is that the court allowed the jury to be polled after it returned its verdict, without consulting defendant. Appellant also alleged that he represented himself at his trial, but that while he was in jail the sheriff’s department refused him the right to use his own law books; also that he was brought into court manacled and made to sit before the jury for several minutes before such manacles were removed, and that the trial court should have then and there dismissed the charges against him, though he admits that he made no motion for such dismissal. He further alleged that the complaining witness who testified against bim at the trial made conflicting statements and committed perjury, and that petitioner was not permitted to swear to a complaint against said witness.

The petition for writ of error

coram nobis

was denied by the superior court, and from the order of denial this appeal was taken. The record on appeal, which was filed in this court on July 28, 1949, consists solely of the petition, the order denying same, and the notice of appeal with notice to the court reporter to prepare transcript. No transcript of the proceedings on the original trial was included.