People v. Birdsell

PLUMMER, J.

This cause is before us upon the respondent’s motion to dismiss the appellant’s appeal from an order of the superior court denying the defendant’s petition for a writ of error

coram nobis

and the relief sought to be obtained thereby.

The record before us shows that' on the 22d day of January, 1932, an information was filed in the Superior Court of the County of Madera, charging the defendant in two counts with passing fictitious checks. The information also in subsequent counts charged the defendant with having been previously convicted of three crimes of forgery, giving the dates

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thereof. These allegations are contained in counts three, four and five. Upon arraignment the defendant pleaded guilty to counts one and two, charging him with passing certain fictitious checks, and after some conversation relative to the charges contained in counts three, four and five, entered a plea of guilty as to each of said counts. Thereafter the court pronounced judgment adjudging the defendant an habitual criminal and sentencing him to the state prison for life without right of parole.

On the 14th day of October, 1936, the defendant filed a petition in the Superior Court of Madera County praying for a writ of error

coram nobis,

setting forth, among other things, that he was induced to enter a plea of guilty as to counts three, four and five contained in the information by reason of certain statements of the presiding judge of the court.

The petition prayed for the setting aside of the judgment and the pleas of the defendant preceding the judgment. Upon the hearing of the petition just referred to the court entered its order denying the same. From the order denying the petition just mentioned an appeal has been taken by the defendant to this court, and the matter is now before us upon the motion of the respondent to dismiss the appeal on the ground that the notice of appeal failed to comply with the provisions of section 1239 of the Penal Code, in that it was filed prematurely, or before the making and entry of the order of the superior court denying the appellant’s petition for a writ of error