People v. Mitchell

MUSSELL, J.

On February 19, 1932, an information was filed in the Superior Court of Orange County charging appellant with the crime of grand theft, alleged to have been committed by him on or about December 18, 1929. A jury found appellant guilty as charged and he was committed to the state prison for the term prescribed by law. No motion for new trial was made and no appeal was taken from the judgment. Appellant’s term of imprisonment under said judgment has long passed and he is presently confined in the Nebraska state penitentiary.

On June 23, 1954, appellant filed in the Orange County Superior Court an “Application and Motion in Writ of Error Coram Nobis,” stating therein that at his trial in 1934 one Bert West was his counsel; that Mr. West was the district attorney of Orange County when the information was filed; (a fact not borne out by the record as the information apparently was signed and filed by Sam Collins, District Attorney) that in 1932 Mr. Kaufman was first assistant district attorney to Mr. West and at the time of trial Mr. Kaufman was district attorney; that in 1932 he retained Mr. Jacobs as his attorney but that he had discharged him after a misunderstanding ; that Judge Scovil, who presided at the trial, was a former law partner of Mr. Jacobs; that the complaining witness failed to keep his agreement to “get the case dis

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missed”; that “the court was being used as a collection agency^ in a criminal prosecution”; that by reason of this conviction appellant was denied an insurance license as agent and denied life insurance. He further alleged that he is now serving a prison sentence in Nebraska, the offense being “1 to .5 years, whereas, he received a sentence of 12 years, due to multiple sentence law.”

The trial judge herein appointed an attorney to represent the appellant in the proceeding on his application and Mr. West testified at the hearing concerning the proceedings at the trial and in refutation of the allegations of the petition. He stated that during the time he was district attorney a complaint was filed by one of his deputies charging defendant with grand theft; that at a subsequent time, and after he, West, left the district attorney’s office, defendant came to him and discussed the case with him; that at the commencement of the trial it was not brought to his attention and he did not realize that he was district attorney when the complaint was filed; that during the trial this fact was brought to his attention and after discussing the matter with the court, it was agreed that he proceed with the defense; that defendant, in open court, stated that he was advised of the situation, that he wanted to waive the disqualification and wanted to proceed and have West defend him.