People v. Tidwell

MARKS, J. This is an appeal from an order denying a petition for writ of error coram nobis.

Petitioner was arrested for drawing and passing an insufficient fund cheek with intent to defraud. An information was filed against him. He appeared without counsel for arraignment on February 1, 1946. The matter was continued to February 15, 1946, to permit him to employ counsel. On that date he again appeared without counsel and the public defender was appointed to represent him. A plea of guilty was entered and defendant asked to be placed on probation. On March 1, 1946, probation was denied and he was sentenced to confinement in the penitentiary for the term prescribed by [477]law, “Sentence to run Concurrently with Case #C-5563.” While there is no direct evidence on the subject, the record justifies the inference that defendant was on probation at the time the check in question here was passed.

The petition for a writ of error coram nobis was filed on March 11, 1946. It was alleged that defendant “plead guilty because of fraud, duress or mistake and would not have so plead but for such fraud, duress and mistake. ’ ’

Defendant was arrested by a deputy sheriff of Orange County accompanied by a police officer from Bell. He testified that he told the payee of the check that he was not sure that he had funds to cover it but that he expected to make additional deposits; that if the check was returned by the bank unpaid he would take it up with cash if the payee would notify him; that he communicated these facts to the arresting officers ; that they told him that unless he “would cooperate with the Orange County authorities in connection with the above numbered case and plead guilty that they would make it as ‘rough’ upon the defendant as they could and file additional charges against affiant in Los Angeles County, but that if he would plead guilty to said charge that they would not prosecute him upon such additional checks”; that the deputy sheriff made other threats against him.

The deputy sheriff was called as a witness and flatly contradicted this evidence. Thus, we have the familiar circumstance of the trial judge believing the testimony of one witness and rejecting the evidence of another. Conflicts in the evidence are settled in the trial court. Further, it rather clearly appears that these alleged threats did not induce the plea of guilty, but that the plea was induced by the hope that defendant would be granted probation and not sentenced to the penitentiary.