People v. Walsh

WOOD (Fred B.), J.

In January, 1950, Thomas J. Walsh was convicted of robbery and six assaults with a deadly weapon with intent to commit murder. He neither moved for new trial nor did he appeal.

In April, 1954, he filed in the superior court a petition

coram nobis

to vacate the judgment. The petition was denied and he has appealed.

As grounds for vacating the judgment, his petition alleged: (1) Insufficiency of the evidence to support the judgment; (2) prejudicial error of the court in allowing the prosecution to cross-examine the defendant upon matters not testified to upon his examination in chief; (3) deprivation of a

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fair and impartial trial by the prosecution withholding a material part of the People’s case in chief and using it upon rebuttal under the guise of impeachment; and (4) deprivation of defendant’s right to appeal from the judgment, by the appointment of counsel who assured defendant an appeal would be taken but none was taken.

The first three of these grounds would not justify granting the writ applied for because they were known at the time and could have been presented and considered upon motion for a new trial or upon appeal from the judgment.

(People

v.

Buzzie,

123 Cal.App.2d 915 [267 P.2d 869];

People

v.

Paysen,

123 Cal.App. 396, 402-403 [11 P.2d 431].) “ ‘The office of the writ of

coram nobis

is to bring the attention of the court to, and obtain relief from, errors of fact, such as ...

a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant,

was not made, either through duress or fraud or