People v. Weatherford

DORAN. J.

The present controversy concerning responsibility for the murder of Mary Annette Struck on April 5, 1943, has been before the courts on several different occasions. The defendant’s first conviction of murder, with punishment fixed at life imprisonment, was reversed in

People

v.

Weatherford,

27 Cal.2d 401 [164 P.2d 753]. After a second trial of the appellant, a similar verdict of guilty was returned on June 14, 1946, which conviction was affirmed in

People

v.

Weatherford,

78 Cal.App.2d 669 [178 P.2d 816], The Supreme Court denied appellant’s petition for a hearing.

On January 8,1948, the appellant filed in the superior court notice of a “Motion to Set Aside Judgment,” on the ground that “said judgment was rendered and entered in violation of the Constitution of the United States and the Constitution of the State of California, and is void.” More explicitly, appellant contended that “the Court has no right or power to instruct the jury on questions of fact, that when a Court does do that, from the moment of the instruction ... a defendant is denied his constitutional right, he is denied due process of law and from then on every act is void.” There was a demurrer to the motion, on the ground.that it was not shown that appellant did not have a trial on the merits, that no extrinsic fraud, coercion or duress was alleged, and that the questions presented were moot, having been raised and adjudicated in

People

v.

Weatherford,

78 Cal.App.2d 669 [178 P.2d 816]. On January 26,1948, the trial court sustained the demurrer, and, “on its merits,” denied appellant’s motion

[277]

to vacate the judgment. The present appeal is from that order.