In Re Manchester

[741]

SHENK, J.

The petitioner seeks his release from Folsom Prison on allegations that the prosecution knowingly used perjured testimony and false exhibits to obtain his conviction.

The petitioner was convicted on November 2, 1943, in the Superior Court in Sacramento County of the crime of incest committed on his 10-year-old daughter, Elaine. He was represented by counsel throughout the trial proceedings. No appeal was taken from the judgment nor from the order denying his motion for a new trial. Instead of taking an appeal, his counsel unsuccessfully sought to have the petitioner declared a sexual psychopath pursuant to section 5500 et seq., of the Welfare and Institutions Code.

Several prior applications have been prosecuted by the peti- ■ tioner on grounds similar to those here presented. In June, 1944, he filed in this court an application for the writ of error

coram nobis

(Crim. 4562), on the ground that he was convicted through perjured testimony. The application was considered as more properly one for the writ of habeas corpus and was on June 12th denied for the reason that there was no allegation that the prosecution knowingly offered perjured testimony. On January 4, 1945, a petition for the writ of habeas corpus was denied by the District Court of Appeal, Third Appellate District (3 Crim. 1900). In February, 1945, a petition for the writ of habeas corpus was filed in this court (Crim. 4621). That application was denied on March 22d, after the transcript of the evidence and other proceedings at the trial had been examined and on the ground that the allegations in the petition fell short of a showing that testimony at the trial was not the truth, or if it was false that the prosecuting attorney knew of its falsity. On November 16, 1945, the petitioner filed in the Superior Court in Sacramento County (Crim. No. 15623) an application for the writ of error coram

nobis

based on the same grounds. The application was denied on November 29, 1945, and no appeal was taken from the order of denial. On January 10, 1946, another application for the writ of habeas corpus was denied by the District Court of Appeal, Third District (3 Crim. 1957).