11 P.2d 431 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *398 Appellant was tried by a jury and convicted of burglary in the second degree, after having suffered a prior conviction of grand larceny. A motion for a new trial was denied and thereafter appellant made a second motion for a new trial, and, that being denied, made application for a writ of coram nobis, which was also denied.
[1] Appellant's first assignment is that the court erred in receiving in evidence the testimony of the complaining witness given by her at the preliminary examination over the objection that such testimony was hearsay "ambiguous and unintelligent", that the defendant was taken by surprise as he had expected the witness to be present in person and that, had he known otherwise, he would have taken her deposition to clear up certain points in the witness' testimony. Before the testimony of the complaining witness was introduced in evidence the prosecution proved that this witness was outside of the state of California, to wit, in the state of Arizona, and no objection was made that such a foundation for the reading of the testimony had not been laid. The objection that such testimony was hearsay and therefore inadmissible is fully answered by the express provisions of section
[3] Appellant contends that his second motion for a new trial was improperly denied. This motion was based upon alleged newly discovered evidence. No appeal was taken from the order of September 18, 1931, denying appellant's first motion for a new trial, the notice of appeal herein having been given on November 7th, the date of the denial of the second motion. Not only is the appeal obviously one from the order of November 7th, but it came entirely too late to operate as a notice of appeal from the order denying the first motion for a new trial. Furthermore, the statement of appellant of his third point specifically shows that he is complaining only of the order denying the second motion. The point is without merit, for it is well settled in this state that when the trial court has made its order denying a motion for a new trial "the right to move for a new trial had thus been exercised and exhausted". (People v. Ingersoll,
[4] The testimony of the complaining witness, Anna Porter, by whom the corpus delicti was established, was that she resided in the Mariner Arms Apartments in the city of Long Beach; that she lost a purse containing $29.95, some medicines, a fever thermometer, her driver's licenses in two states and some other articles; that she last remembered having her purse when she returned home on the night in question and took her key out of it to enter the apartment building; that she had no distinct recollection of so doing, but that it was her universal custom to lay her purse on the mantel; that when she went to the mantel the next morning she found her key there but no purse; that also on this morning she found her door unfastened, but that she did not definitely recall locking it the night before, and that she had given no one permission to enter her apartment or to take anything therefrom. The basis for the second motion for a new trial and the application for a writ of coram nobis is an affidavit of the complaining witness wherein she deposes that she does not remember having her purse after entering the Mariner Arms Apartments on the night in question and that it might be possible that she lost the purse before entering the apartment house on that occasion. The latter statement as to a possibility is, of course, not a statement of fact and could have no part in determining either of the motions before the court. The statement in the affidavit that affiant did not, at the time of making the affidavit, remember having had her purse after entering her apartment is practically and at best the same as the statement in her testimony that her last recollection of having the purse was when she took her key therefrom to unlock the door. Hence the affidavit is no more than a reiteration, in a slightly different form, of the evidence at the trial. Since this lack of recollection of the location of the purse after the complainant entered her apartment appears in her testimony at the preliminary examination, which was read at the trial, the court was warranted in denying a new trial upon two grounds: (1) that the competent portion of the evidence contained in *401 the affidavit, had it been introduced at the trial, was not such as would have rendered a different result probable, and (2) that the evidence was not newly discovered, but was known to the defendant from the time of the preliminary examination.
[5] The granting of a new trial on the ground of newly discovered evidence rests in the sound discretion of the trial court (People v. Radz,
[8] For the reasons stated, appellant's motion for a new trial was without merit. The reasons which warranted a denial of that motion on the merits also called for a denial of the motion for a writ of coram nobis. (1 Freeman on Judgments, sec. 94; 5 Ency. of Pl. Pr., p. 27.) This writ was also properly denied because "where remedies exist by statute which did not exist at common law, the office and function of the writ are abridged thereby and in such cases the writ is unavailable. These remedies are the right to appeal and to make a motion for a new trial, and where they are provided by statute, to that extent an application for a writ of coram nobis cannot be entertained. It is in those cases where the defendant has been denied a trial upon the merits, in other words, where there has been no trial at all, that relief of this kind may be granted." (People v. Mooney,
The judgment and orders appealed from are affirmed.
Works, P.J., and Thompson (Ira F.), J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 24, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 9, 1932.