People v. Krout (1949)

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ] ; People v. Knight, 73 Cal.App.2d 532, 535 [ 166 P.2d 899 ].) The writ is not available to review any matter which could have been presented on a motion for a new trial or on appeal.

(People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) The order denying the application of the appellant for a writ of error coram nobis is affirmed.

(People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) The order denying appellant’s petition is affirmed.

(People v. Tucker, 154 Cal.App.2d 359, 362-363 [ 316 P.2d 417 ]; People v. Flores, 147 Cal.App.2d 243, 247 [ 305 P.2d 90 ]; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) Defendant’s delay of more than 18 months in the instant case is without any sufficient or substantial explanation.

(People v. Collins, 97 Cal.App.2d 552, 556 [218 P.2d *363 87].) In People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ], a delay of eight months foreclosed the defendant of his right to relief.

“People v. Remling, supra, 146 Cal.App.2d 476, 480 [ 304 P.2d 97 ]; People v. Ryan, 121 Cal.App.2d 651, 655 [ 263 P.2d 850 ]; People v. Malone, 96 Cal.App.2d 270, 272 [ 215 P.2d 109 ] ; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].

(People v. O’Connor, 114 Cal.App.2d 723, 726 [ 251 P.2d 64 ] ; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ]; People v. James, 99 Cal.App.2d 476 [ 222 P.2d 117 ].) Questions of a limited nature pertaining to habitual criminal determinations have been allowed to be reviewed in a habeas corpus proceeding.

The reason for this rule and the necessity for it is cogently set forth in People v. Martinez, supra, p. 773 , 774 (see also People v. Collins, 97 Cal.App.2d 552, 556 [ 218 P.2d 87 ]; People v. Lumbley, 8 Cal.2d 752, 761 [ 68 P.2d 354 ] ; People v. O’Connor, 114 Cal.App.2d 723, 727, 728 [ 251 P.2d 64 ] ; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ]).

(People v. James, 99 Cal.App.2d 476, 479 [ 222 P.2d 117 ]; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ] ; People v. Ayala, supra, p. 249 .) Defendant predicates error on the court’s exclusion of evidence that he was induced to employ Mrs. Root through capping activities on her behalf.

People v. Cox, 141 Cal.App.2d 158, 160 [ 296 P.2d 72 ] ; People v. James, 99 Cal.App.2d 476, 479 [ 222 P.2d 117 ] ; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ].) The defendant’s accusation that he was denied the right to subpoena witnesses finds no support in the record other than his mere statement of the charge.

(People v. James, 99 Cal.App.2d 476, 479 [ 222 P.2d 117 ]; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ].) It is well settled that the remedy sought in the court below does not lie to redress any irregularity occurring at the trial that could be corrected by a motion for a new trial or by appeal.

(People v. Shorts, supra, 32 Cal.2d 502, 512-514 ; *622 People v. Collins, 97 Cal.App.2d 552, 556 [ 218 P.2d 87 ]; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) In the instant case the defendant offered no explanation for the delay that occurred between the entry of judgment and the tardy application for the writ.

“Its purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. [Citing cases.] The applicant for the writ ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any …

It does not *246 lie to correct errors of law made at the trial. [2] "Its purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. [Citing cases.] [3] The applicant for the writ `must show that the facts upon which he relies were not known to him and could…

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ]; People v. Houser, 96 Cal.App.2d 786, 787 [ 216 P.2d 171 ]; People v. Watkins, 92 Cal.App.2d 375, 376-377 [ 206 P.2d 1118 ].) Appellant did not allege in his petition when he discovered the facts alleged therein upon which he relies or that they could not have been discovered by him many years prior to the filing of his petition.

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ].) Likewise, under the facts as presented by the record, the defendant cannot in these proceedings obtain a determination of the question of whether he was legally committed or was not informed of his right to counsel at the preliminary hearing.

Neither the sufficiency of the evidence (People v. Martinez, 88 Cal.App.2d 767, 771 [ 199 P.2d 375 ]); nor errors in the admission of evidence (People v. Hightower, 75 Cal.App.2d 298, 299 [ 170 P.2d 490 ]; People v. Coyle, 88 Cal.App.2d 967, 971 [ 200 P.2d 546 ]; People v. Lawyer, 11 Cal.App.2d 718, 719 [ 54 P.2d 747 ]); nor the claim of the accused that he was committed on the uncorroborated testimony of an accomplice (People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 …

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ]; People v. James, supra.) There is no merit to the claim that the motion of defendant for personal appearance at the hearing was improperly denied.

(People v. James, 99 Cal.App.2d 476, 479 [ 222 P.2d 117 ]; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ]; In re Sprague, 37 Cal.2d 110, 115 [ 230 P.2d 633 ]; People v. Watkins, 92 Cal.App.2d 375, 376 [ 206 P.2d 1118 ].) The contention that the district attorney failed to carry his burden of proof as to the prior felony convictions likewise cannot be determined in these proceedings.

But even if there had been, it is settled by the authorities that lack of effective aid of counsel cannot be determined in coram nobis proceedings (People v. James, supra, 99 Cal.App.2d 476, 479 ; People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ]).

(People v. Shorts, 32 Cal.2d 502, 512 [ 197 P.2d 330 ]; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) The judgment in the state court was entered March 28, 1949, and the application for the writ was filed in the superior court March 16, 1951, and no reason is given for the delay in filing such application.

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ].) Appellant also claims that the writ should be issued because he was denied court-appointed counsel at the preliminary hearing; that he was accused of the crime because of notoriety of a rape charge for which he was on parole and that his attorneys did not properly represent him.

(People v. Krout, 90 Cal.App.2d 205, 208 [ 202 P.2d 635 ].) The contention as to the improbability of certain evidence introduced by the prosecution is directed principally to the testimony of one Harry Goldwasser as to what he saw upon entering the victim’s cabin, and to the testimony of a public officer that he heard the defendant state “What’s all the excitement about?

This fact alone was sufficient reason for denying the motion (People v. Hammond, 22 Cal.App.2d 505, 506, 507 [ 71 P.2d 334 ]; People v. Shorts, 32 Cal.2d 502, 512 [ 197 P.2d 330 ]; People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ]).

(See People v. Krout, 90 Cal.App.2d 205, 209 [ 202 P.2d 635 ].) Such a contention could have been considered on a motion for a new trial.