*1 No. 4709. In Bank. Feb. [Crim. 1947.] In re LINDLEY Corpus WILLIAM MARVIN on Habeas
and for Writ of Error Coram Vobis. *2 Curtis, Sr., Matthews, Jesse A1 Arthur D. W. Carr Appellant. Rosalie S. Asher for Kenny, Attorney Lener, Dep- General,
Robert W. David K. uty Attorney General, Loyd Hewitt, Attorney E. District (Sutter County), Respondent.
EDMONDS, J. William Marvin [Marven] guilty 13-year-old Hamilton, found of the murder of Jackie girl. The verdict included no recommendation for life im prisonment and a Upon appeal, sentence of death followed. *3 judgment denying and the order a new trial were affirmed. (People Lindley, v. 227].) Cal.2d 780 There superior after the court denied a writ error coram nobis. present proceeding, petition for a writ habeas corpus application “by way includes an appeal” that from order and also grant asks that this court writ a of error coram vobis. petition generally
The judgment asserts that the of convic- “illegal” tion is testimony given by because of certain false several witnesses at evidence, the trial. petition This al- leges, by falsity. was offered with knowledge State of its specifically, More charged is that representative a suppressed, prevented State or of, introduction evidence Lindley’s would have been favorable to defense. petition, extrajudicial In the statements said to have been by Hamilton, made Louis Onie father victim, are com- pared with his alleged and it the witness, because of “fraud, deliberate perjury, . . . persuasive or because of influence, amounting duress, faulty Sheriff A. W. Kimmerer memory ... or because of plain ,” changed . . . mistake an to such extent Lindley’s attorney jury, courts,
that the misled “were Lindley only vicinity believing person in the into place of the crime at the time it ‘the took who could have been ” man in the willows.’ of Willa Mae Hamil- ton, sister, upon ground that, Jackie's is attacked as a re- her testimony, jury Lindley’s sult of false and court and attorney “were misled believing into that she had never met Lindley and for that recognize reason did not him the man she had seen in the support allegation, willows.” In of this an affidavit of Nathan petition. W. Owen is attached to charge
A further is that Jackie described her assailant “an man,” old red-headed although she knew and called him “Red” she did not use name in state- regard ment in injury. to her The evidence which the conviction particulars. rests is also criticized in other Kimmerer,
Sheriff according petition, published to the in a 11-year statement asserted that Owen, Luther B. son Nathan W. Owen, was not near the crime, scene of the but as a fact, matter of he was in vicinity the immediate when it committed. In an Fry affidavit made Ferrel and at- tached petition, she declares boy that the told her he present at the boat about the house time of the crime saw a red-headed fisherman in “waving fishing the willows ’ pole girls in swimming.' Also, continues, the affidavit boy “the Owens definitely stated that he saw . . . Jackie grabbed by a man standing who had been in the willows and that it was a man other than Marvin Lindley, that he thinks it was the other red-headed man who had fishing.” been affidavit, Another included in petition, was made Betty Biggs Sehrick, newspaper writer. She states that in with Filipelli, interview Guiño shepherd boy who testi- fied eyewitness as an to the tragedy, he told her “that boys two on horseback went to boat house before he saw grab the man Jackie” and after the attack “he saw the man walk toward the boat house but he did not see the man enter the boat house.” report
A acting governor made in connection with a *4 reprieve granted part is made a petition. of the This report includes that, the statement since the new and additional evidence has been discovered reporters who interviewed the father and sisters of the victim. As summa- rized in the report; this evidence presence relates to the a of
713' camp toward the fisherman who followed Jackie red-headed were in “ogling girls who swim- was [Hamilton] ’’ ming. allegations relate as- remaining petition regard knowledge prosecuting serted officials failing in- testimony, neglect in to conduct a full false their Lindley. vestigation, and the condition of In this mental alleged prosecuting it is officials “deliber- connection ately suppressed obtained from information had Willa description concerning' Mae Hamilton” red-haired girls swimming, who watching fisherman “for reason that such information would have been fatal to their theory Lindley’s guilt, and have would raised reasonable jurors.” charges in the minds of the Other doubt are given “the investigators Depart- misinformation from the ment of Justice from the State California Sheriff Kim- neglect any merer led them to to interview of the Hamilton family Logan Davis,” fishermen who, two ac- cording admission, to their own were not over two hundred place Also, feet from petitioner the attack. de- clares, no effort was made to communicate with Luther B. Henry Owen (Shorty) Sternat, present who were boat house the time the crime plead- was discovered. The ing concludes with a statement of asserted facts tending to prove Lindley’s insanity at the time the committed, crime was during the trial and at present time.
Upon petition, this a writ of corpus habeas issued, and Geary, Judge Honorable Donald Superior Court, in and County for the Sonoma, appointed referee to hear the responsive evidence following questions: any “1. Did against witness who testified William Marven Lindley in the trial which resulted in judgment of con- viction, affirmed this in People Lindley, Court v. 26 A.C. (161 Cal.2d 227)], perjury commit de- fined in Penal Code State of California; is, any testify any did witness material matter he knew to be ? false “2. In the event that witness did commit did perjury, any representative of the State of cause or suffer California introduced, such testimony to be knowing such
given perjured ? *5 sup- the State of California any representative Did “3. had which, the introduction of evidence press prevent the favorable to defense given, would have been been ’’ Lindley William Marven hearings crime and held visited the scene of the The referee appeared than 40 the state. More witnesses in five cities of conviction, Lindley and his The identification testified. primarily upon reported, “rested the referee the Hamilton, father of Jackie Louis Onie four witnesses: Hamilton, her Marie, victim; Barbara and Willa Mae the Filipelli, herding sheep his the river sisters, and across Guiño away. hundred feet Two of these six hundred to seven some daughter Barbara, his witnesses, Mr. Hamilton and testified directly . Marie Hamilton had accused . . that Jackie [Lind- man the house in the words ‘the old red-headed boat ley] daughters them, Mr. and his did Three Hamilton it.’ Mae, . . and Willa also testified to conduct . Barbara plainly jury, have [Lindley] must indicated to the reading con- anyone transcript, deep the trial evidence of a importance guilt part.” sciousness of on his Because the upon made of these witnesses and the attacks present proceeding, report it in the referee included in Ms the quotations inquest, from records of the coroner’s extensive jury inquiry, Lindley, tran- grand trial of hearings. evidence script of recent To summarize this presents many within reasonable limits difficulties. At Onie direct ex- Louis Hamilton testified in- that when he first arrived at the side of his amination jured man, daughter said, “Daddy, that old red headed she dirty repeated times, this several he declared. liar.” She red headed quoted saying, “Daddy, that old He also her ’’ dirty Upon man; that liar at the boat house. cross-examina- jury, grand tion, Hamilton’s before read to him. appears, reference to the boat house no testimony, replied, Hamilton “I answered explanation of that man, way.. said, red headed question in this She ‘the old ” house, it.’ recital dirty liar at boat did The father’s jury daughter’s coroner’s of his statements before the given at the trial. same as hearing that in answer At the referee’s Hamilton testified man, old red-headed inquiry Jackie “The to his said: ’ ’ suggested it. And after Barbara Jackie dirty liar, did house, the father told to the boat be taken injured girl said, “No, no, that old red-headed man at the dirty house, liar, boat did it.” “any At the trial Hamilton if he had other was asked seen red men there, except Lindley,” headed around and he re plied, “No, Lindley Lindley sir.” left He did not see after nearby camp following their return from the ranch on an errand, testified, up Hamilton did not come According from the boat house while Jackie was in the car. Hamilton, Lindley give daughter, he saw some water *6 Barbara, platform Lindley house”; “on the then boat “turned his Dropped head went on back. his head and went back repeated to the boat some of house.” The witness this testimony before the but stated that about the time committed, fisherman, crime was he saw a dressed khaki wearing hat, fig. a blue He picking straw did not notice the or his complexion. color of man’s hair When jury he was grand before the Hamilton that when said ‘1 up Lindley Jackie came camp go through he saw down the woods there.”
Barbara grand jury, said, ‘Daddy, Hamilton told “I her ‘No, daddy, let’s take to the boat house’ and she said no. ”’ That old dirty red headed man is a liar. At the under cross-examination, as, gave “No, Barbara Jackie’s answer daddy, old it, red headed man the boat house did dirty grand liar.” When shown her before the jury, she stated it was true. Before the referee direct examination, quoting sister, her Barbara used the same lan- guage as she did possi- at the trial. But if it when asked ble that her sister did not house, mention the boat but said only, “No, daddy, man, dirty liar,” that that old red-headed replied, she “It could be.” Under cross-examination she said any- she was not able to whether remember Jackie said thing being about red-headed man at the boat house. regard her testimony generally, to the ref- Barbara stated to eree that no one in the sheriff’s office or the district attor- ney’s had say. office told her what to grand jury
Barbara testified both at the before the trial that did not Lindley up she see come from boat house the car Lindley only where had placed; Jackie been came to way. half She Lindley Henry get asked either Sternat to some Lindley water for Jackie. “walked as slow as he could.” At the hearing before the referee she could not remember testifying facts, ques- some of these and in answering he get Bill, and you tell him didn’t tion, . . [Red] things hap- of those None he could? slow as walk as didn’t asked, “In replied, “No.” When they?”, did she pened, wrong statement,” Barbara, that is say, words, you other I stated, “Yes . . . don’t “Yes”; then said, but at first she they wrong.” In corrobo- say are I wouldn’t recall .... father, Richard and her of Barbara ration of the McCarthy, riders, told horseback Lawrence Burks and the car up not come did jury at the trial of during was there. the time Jackie sheriff, McCune, L. con- deputy and B. Hopper,
Kenneth brought Hamilton stable, present when Louis Onie who were taking hospital, her to the police station before Jackie were lim- the referee that Jackie’s statements testified before Daddy, red- it, man did the old to “The red-headed ited old nothing they present while headed man.” Jackie said house, man with the boat the red-headed which connected However, testified. corroboration special in a is the statement found father and sister Jackie’s . . Kimmerer states the agent’s report as follows: “. Sheriff very was, girls start that he had from the from answer it, he did house, red man at the boat ‘It was the old headed ’ ’’ dirty liar. Hamilton, daughter of Louis Onie Hamil- Willa Mae also a ton, “just glanced” trial upon the that she testified *7 willows, recognize However, him. man in the but did not referee, “Yesterday [April witness testified before the this 1st, got studying over, Lindley” I it it when was 1946] In with who was man the willows. conflict Willa Mae’s had at the trial that never been down she day boat house before the Jackie was killed is the affidavit of Nathan William Owen which he states that Willa Mae Lindley prior had met at the boat house on several occasions appear to the time of the did attack. This witness before Upon the referee. Willa Mae testified that after away place go took Jackie she did not to the where But, upon questioned found. being Jackie was at the ref- hearing, accompanied Lindley, eree’s she said she who that carrying younger sister, Shirley, was her to the willows where the attack occurred.
Unquestionably jury which convicted believed of the given by Filipelli, account crime which was Guiño shepherd a Feather boy. herding sheep He was across eyewitness an testified as and the attack occurred River when tree, he a sitting under He that while said to the homicide. They and the water swimming. left girls two had watched go girls noticed one he house. Later the boat entered girl down a come he saw Then her home. toward toward went back she her feet. When wash water and they went “Red” and with fighting levee, said, she started he “Red” as identified positively He the willows. down behind said house and boat he had around men seen one of two walking back saw “Red” died he the afternoon Jackie that on hat, pants, wearing brown brown willows, a in the and forth he that the trial shows The record and brown shirt. Lindley in the recognized picked jail, “Red” out in the suggestions iden- of other “Red,” against courtroom as even tity. correctly recognize mentality ability to and his
Guiño’s hearing. He severely challenged referee’s colors were In know what an oath was. told the referee he did not you it tell the response “Do know what is to question, However, tell replied, Don’t no lies.” truth?” he “Yes. . . . lie,” he did what “it to tell a and when asked not know is you telling words, it, lie, telling a the truth “In other see thing, is When right?”, replied, he “Yes.” same you asked, “Why things somebody do else tells tell because you them?”, tell replied, to tell “Because he wants to Guiño ’’ them. asked to state who
When the color dress of woman attending hearing, “black”; was he said in real- referee’s ity question, “Why was brown white. answer you you pants?”, did first believe brown had on the witness I replied, testimony, “Because In view like brown.” of this along experiments the referee conducted the banks of the measuring Cards about two Feather River. three feet were questioned shown to at different times and he Guiño was to their color. distance from witness to these cards stipulated as six and being was between seven hundred feet. yellow white, gold brown, He card was said one orange red, gray time, one one blue. At he another green blue, gold white, said that light brown was white, pink red, but identified He some colors. *8 correctly stated at one time that a man across the river at wearing the same distance from him was hat, coat, a brown erroneously But he and trousers. identified brown, a blue hat as grey black, hat and coat as and a brown trousers as black. testimony to his his examination before referee as quite answers were inconsistent. How- Guiño’s story without ever, when he was allowed to tell his a whole essentially by gave in pressure questions counsel, he the same form as at the trial. assigned investigate the Hopper, deputy
Kenneth sheriff to crime, interview with testified before the referee as to an Later, day next after the crime was committed. Guiño the boy. time said, questioned the Bach he Kimmerer Sheriff story. According Hopper, practically told the same Guiño story him freely tell and asked allowed Guiño to his own only necessary at questions. As he recalled the conversation the man time, that “The asked if he knew Sheriff [Guiño] yes, it house.” Sheriff and he said was Bed from boat hearings. Kimmerer died time before the referee’s some investigation, was taken to In the course of the Guiño Hopper. of the crime In his before scene the time he talked with Guiño Hopper said that at boy. Hopper Both competency he as to the was satisfied picked referee that out father told the Guiño Guiño’s in group prisoners as the man from of four or five Lindley’s hat from several also selected brown He willows. Hop- him as worn Jackie’s assailant. exhibited the one mother and per’s was corroborated Guiño’s evening the crime father who told the referee on substantially events them in same related the Guiño answering questioning the offi- as he used language trial. cers and Owen, B. the referee presented of Luther
by deposition, in accordance with facts stated in is not Fry. Although the affidavit Ferrel Luther admitted ques- vicinity boat house on the date he was in the seeing tion, he denied red-headed man a.fisherman Moreover, specifically the state- contradicted willows. Fry regarding Mrs. her asserted conversation with ments of Fry before the referee However, him. Mrs. insisted story related in her affidavit. she Luther told her at the time told the referee that witnesses Several employed at the Cun- hop picker a red-headed homicide from and one-half a mile ningham ranch, located about work man did not day died this boat On the Jackie house. fight evening, they said, heavily. drinking That and was *9 in two fellow work- hop ranch and the melee occurred at it.” Accord- “having done the red-headed man of ers accused pickers to fracas, hop of said ing to a to the one witness ropes man, you, I it will be the the red-headed “If tell on tiger” you.” “jumped like a The red-headed man then of Kimmerer was notified and choked the accuser. Sheriff hop following went to the afternoon this incident time, However, by that fields and interviewed witnesses. collecting fight in their had left without the men who them, $24. amounted to about wages which, for one of day homicide, accord- Late in the afternoon of the man ing a red-headed presented referee, vicinity appeared Store, in the at the Gum Tree located soap. Cunningham purchased elorox and ranch. He some A scratched clerk the store noticed that the man’s face was change.” The accept “he he his and was so nervous couldn’t business,” . when she man told the clerk to “mind . . [her] him was re- questioned about his nervousness. This incident ported highway patrol to a officer and the man was identified. his officer, look like But, according to man “didn’t description.” not whether the officer The witness did know re- Later, proprietor talked with the store man. ported suspicions but, her related to the sheriff she as incident, deputies inter- neither the nor of his sheriff inves- However, what, any, if viewed her. did not know she tigation other witnesses tes- the sheriff had made. Several tified a red-headed man other than was in vicinity at homicide. the time of the evidence, reviewing the referee concluded
Upon all of the Hamilton, Barbara Hamil- testimony of Louis that the Onie Lindley, given ton, Hamilton, Willa Mae at the trial of and testi- particulars. in certain This was erroneous and untrue effect material, in and its mony opinion However, did not con- minimized. he found cannot be Penal term is Code perjury as that defined stitute finding reported: “The explanation California. intelligence emotional reaction character, personality, clearly revealed their each of the witnesses is upon the stand. hearings appearance and their at the various excitement, of one in the case of the crime and the nature following hysteria, immediately its dis- witness described undoubtedly ability of the witnesses covery, affected the accurately correctly either observe all relate facts as elapsed were. More year than a between the date of the crime Lindley’s Admittedly, family trial. the Hamilton had frequently tragedy their occasion discuss circum- It surprising would if a stances connected therewith. against abiding person designated natural and resentment crime perpetrator as the did the authorities important, though unconscious, influence in such exercise presence of Indeed, the continued such resent- discussions. herein. ment manifest in the of these witnesses vagaries circumstances, common such view those Under times, ability distinguish which affect each of us at necessarily been reduced fancy fact must have between *10 in heretofore vanishing Hence, although the point. testimony the is convinced particulars the Referee mentioned facts, unques- . with the of witnesses . was in accord the . according belief and to their tionably testified these witnesses ...” conviction. shep- young which the crime Considering story of the the testimony “his jury, referee found boy herd related to details, eventually after much con- aud essential certain substantially originally related flict, the same reverts least, testimony that, in quite part him. probable It is imagi- a lively is of observation based combination However, regardless be doubted that . . . it cannot nation. testimony testified in each quality of his the witness conviction, own belief and such according instance to his testimony they cannot are. circumstances his Under such legally perjured. deemed ...” be finding upon issue submitted to the referee second knowingly perjury is false intro- that no or was against Lindley any representative duced State n only opinion California. witness slightest support charge whose affords perjury by any person, that committed or the record perjured the trial of either or false evi- includes dence, shepherd boy. him, that of As to the referee reported: Filipelli’s testimony
“The weakness inherent is in the sheriff and opportunity existence of at least his deputies, disposed, per- so to have induced or were or false perjury mitted the to commit offer witness However, conceded. there is not a scintilla evi- must be indicating disposition upon dence herein such a part any Kimmerer, Deputy Hopper representa- Sheriff other tive of the State of California. necessarily
“The conclusion Filipelli follows that Guiño according testified conviction, his belief and of doubtful though value they be. Yet perjury. committed no Under circumstances, such there is no foundation for the claim of perjury anyone subornation of mony or that perjured caused testi- be knowing introduced perjured. the same to be . . . Nor can it held be representative of the State of Cali- knowingly fornia testimony—as suffered distinguished false from perjured testimony introduced, to be knowing same to be false. The Filipelli questioned witness reques- tioned. From such questioning gained the Sheriff some doubt reliability and truthfulness of the parents witness. The questioned boy declared the truthful. He was always thereafter questioned in presence of his father. The father present when he . identified . . [Lindley] and the latter’s hat. The Sheriff appears placed boy to have position from which he claimed to seen have the crime and, committed according Hewitt, to Mr. ‘they recog- could nize color and movements’ from point. . That, . . course, equivalent is not to stating the recog- witness could nize ‘color and certainly movements’ but it reveals an effort to ascertain the credibility of the witness. The evidence shows the law enforcement officers acted with reasonable caution as regards the legal qualification witness. The of the witness was *11 question a to, by was neither addressed nor determinable them in the first or final instance. ..."
In regard charge by to the suppression of evidence State, officers of the testimony the referee reviewed the regard to the man known as “Red" who worked on the Cun- ningham ranch and proprietor talked to the Tree of Gum report testimony Store. The also mentions the of fourteen tending prove witnesses an unidentified red-headed vicinity man camp at the time of of Hamilton testimony,” the attack Jackie. the referee con- “Such cluded, “might his possibly indicate that the Sheriff and deputies thoroughly clues did not exhaust all of the reasonable If perpetrator them as to of the crime. such available to certainly indicate case, fact the such conduct would duty it inefficiency. However, assuming that one whose 722 properly investigate case,
so to do did not and did not ex- done, if, though by plore clues as he should have even reason none, he he failure to look for evidence discovered sup- charged suppressing be with it. One cannot could not possess. offered press which he does not establishing suppression upon this issue falls far short of any evi- introduction prevention of evidence or the officer by other law enforcement the Sheriff or dence Peti- given, have been favorable which, if would tioner. ...” findings, the filing report the referee’s
Upon the At this court. argument before was calendared for oral cause each hearing, although the referee determined time of attorney gen- State, him in favor issue submitted to file an answer and for, granted, leave to eral and was moved The document determinations. objections to the referee’s ref- challenges conclusion of subsequently presented upon which falsity the evidence of some of eree as to by for Lind- reply filed counsel was convicted. The general vindicate ley purpose its is “to declares that Lindley’s attorneys main, In the Findings of the Referee.” witnesses by testimony of urge that was convicted now incompetent, that new prosecution to be by the known presented was not discovered that evidence has been material Lind- false, that Lindley’s trial, that certain time and at the ley crime was committed was insane when the mentally incompetent. trial, and is now establishes one who corpus proceeding, In a habeas that he was credible evidence substantial, preponderance knowingly presented perjured convicted judgment dis to a State, entitled representatives by the State custody suppression and the charging him from with such in connection will be considered of material evidence 112 S.Ct. Holohan, 294 U.S. charge. (Mooney v. [55 Mooney, 10 In re Cal.2d 406]; 791, 98 A.L.R. 340, 79 L.Ed. is un However, evidence 554].) 1, 14 P.2d [73 testi directly with other in conflict certain, questionable corpus, habeas npon relief ground mony afford a does not a device for may used proceeding within irregularities committed mere errors or correction of Porterfield, (In re jurisdiction. exercise of an admitted Connor, Cal.2d ; re P.2d 91, 706] 28 Cal.2d [168 10].)
723
ordinarily
Upon
corpus,
habeas
it
is not com
petent
retry
defense,
issues of fact or the merits of a
insanity,
sufficiency
such
as
evidence to war
rant
petitioner
proper
conviction of the
is not a
issue
(In
Connor, supra;
Drew,
consideration.
re
In re
188
Stevenson,
Cal.
249];
717
P.
re
187
P.
Cal. 773
[207
[204
216];
Jacobs,
In Williams,
;
re
183
11
P.
In re
Cal.
[190
163]
parte Long,
661
801];
175 Cal.
P.
Ex
Although newly evidence discovered corpus completely undermines the en- by habeas when lief presented by prosecution the the case the at tire structure of conviction, testimony presented to referee time of the only speculation affords a basis for go that far and does not conjecture. Proof a red-headed man other than Lind- at time ley vicinity in the of the boat house the crime was committed, a or the identification witness this stranger “man in the willows” would have weakened as the question presented a more difficult prosecution’s ease regard fact. But for the trier of Lindley’s unerringly to point man innocence. other does autopsy Also, surgeon, of a former called the conclusion that, witness, opinion, Jackie a expert died of only attack, presents a conflict with evidence which heart jury. before may a grounds court issue writ of error narrowly coram vobis are more or writ of error coram nobis corpus. by habeas relief than those which allow restricted practice pur- modern original as well as in the “In the [the . not to review of permit . . was pose of these writs] actually tried with the issues given in connection evidence actually before testified witnesses who to determine whether falsely, but to jury on issues testified determine sworn those at which were not known to the court whether facts existed which, if pleadings, trial not in but issue under actually known, prevented judgment which would have necessarily being And must was entered from entered. so, for, permit if have been the effect of the writ judgment to decide court which was entered whether if falsely, the witnesses in the had testified it decided case being it, had to liti- reverse instead of end of the gation, judgment might beginning it. well be but applicable all, . . . Where there is little from the dissent proposition that it relief from lies to obtain such errors *14 infancy, fact death, as the or coverture of defendant in defenses, time, cases where if at those known would have prevented judgment through a but which fault of the no defendant judgment were not known when the was entered. . rarely . . Such facts proceedings would affect the in a crim- prosecution; consequently inal frequently the writ is less available in cases, such cases than in civil and there is less uniformity in the jus- decisions as to what errors of fact will tify its use in prosecutions. criminal But generally it has been that, held available, where the writ is it lies reverse a to judgment by fraud, coercion, obtained duress, or as where plea guilty procured by force, violence, or intimida- tion, or where at the time of trial in- defendant was sane, when such facts unknown to the court when judgment was entered ... or prevented where accused was by fraud, force, or fear presenting from defensive facts could have trial, been used at his when such facts were not judgment known to the when court entered. . . . By the weight authority, however, remedy decided is not enough every broad reach case in which there has been an unjust judgment ground erroneous or on the sole remedy that no other exists, but it must be confined to eases in supposed which the actually error inheres facts not issue under pleadings at the trial were unknown to v entered, which, the court but if judgment when
726 known, prevented judgment. would have Accordingly, general it is stated as rule that ‘the writ of error coram lie to nolis does not correct an issue of fact which has been adjudicated, though wrongly even determined; nor for al leged trial; ground false at the nor on the juror falsely qualifications; newly swore to his nor for ” (Keane evidence. . . .’ State, discovered v. 164 685 Md. 411, 410, 412, 413]; A. People Mazurski, see v. 298 Ill. [166 App. 362 701, 706]; State, N.E.2d v. 213 277 Hicks Ind. [18 171, 501, N.E.2d 12 ; Coppock N.E.2d Reed, v. 189 [11 502] 382, 383; Iowa 581 N.W. 1407]; 10 A.L.R 24 C.J.S. [178 145, seq.) et writ, scope
This restricted of coram nolis has been recognized by California As People courts. v. stated 249, 195 Reid, Cal. P. (quoting A.L.R [232 1435] “ State, from v. 29]) Sanders Ind. 318 : Am.Rep. ‘It opinion is our that the courts power have the to issue writs in the nature of nolis, the writ coram but that cannot writ comprehensive be so as at law, common for remedies are given by our statute which did not exist at law— common for a right motion new trial appeal—and these very materially abridge the office and functions of the old writ. These afford an ample accused opportunity pre questions sent for fact, review arising upon prior or trial, questions as well as law; while common law the writ of error him present allowed appellate only questions court system of law. Under our all matters fact reviewable appeal, upon motion, pre must be sented motion for a new and cannot be made the grounds of application for the writ coram nolis. Within this rule must fall insanity the defense of well as all other existing defenses time of the commission of the crime. rule, too, Within this must fall all cases of accident and sur *15 prise, against of evidence, newly verdicts discovered evi ” dence, (Quoted all like matters.’ approval with People Lumbley, 752, v. 8 People Cal.2d 759 P.2d 354]; v. [68 Superior 136, 4 Court, 724].) Cal.2d 149 P.2d The [47 basis for the issuance of a writ of error coram volis is substan tially the same as for a coram nolis; writ error how ever, application for a writ of error coram nolis should be addressed in the first instance to the court in which the petitioner was tried (In Roi, convicted. re De La 363].) Cal.2d shepherd It conceded all concerned that the boy mentality, opinion of dull as noted this court in its affirming judgment. The court then observed: “At gave testimony which, along lines, trial he certain such as tendency regarding bathing color of suits, showed a give question asked, although to an affirmative to answer each replies (People Lindley, supra, his were inconsistent.” v. 786.) p. The before the referee substantiated this competency challenged observation. But Guiño’s was not at trial, although capacity the time of the his mental testimony, extent, brought inconsistencies in his some to jury by attention of the cross-examination and argument of counsel. testimony presented
The record of the does the referee charge out the bear incompetent person. Guiño is an regard Q. The evidence in this shows that he has I. be tween 40 physical and 50. In age, terms this is said the equivalent of the capacity mental of a normal child be eight years tween six and old. He completed the work of the eighth grade, but when asked if he replied had done so he ‘‘ reply “No.” His question, you read,’’ was,11 Can Not much.” He did not know the name of the school he attended King. but said his teacher was Miss acknowledged He while in school he had experienced difficulty seeing hearing.
This not, evidence does law, as a matter show that either time of upon the trial or the date he was examined be- fore the incompetent Guiño was an person. The upon record each of his occasion examination as a witness many shows inconsistencies in his answers. Very probably boy quite strange confused his surroundings and the questioning attorneys. But as the reported, referee changed has never in certain par- essential ticulars. charge against Filipelli, now leveled in effect, is a
repetition attack made his testimony when judgment was under challenging review. the evidence being support insufficient to judgment conviction, Lindley’s counsel then declared: “A perusal of the cross- examination of this witness will conclusively show that he can be made to question answer satisfactory ques- question tioner as he did the of the District Attorney set forth *16 728 picture impossible give a better the men- It is
above. given by his tality than is answers on direct of the witness discrepan- full of cross-examination. His is and absolutely unreliable and unbelievable.” cies and is Kimmerer and the other Very probably, Sheriff officers fully Filipelli were aware of his limited who interviewed But, necessarily, and mental deficiencies. officers education procure prosecuting for the must interview and officials as regard persons who know the facts in witnesses those officers, counsel, and has been committed. The crime which -given persons; weight must use the available to their jury. question is a for the court or The evidence fully supports a determination before the referee acted reasonable representatives State with caution interviewing presenting witness, and, and him a Filipelli concluded, competency a as the referee as witness “was nor question that was neither addressed to determinable instance.” Under circumstances, them in the first these nobis, writ of error coram ground there no for relief is vobis, writ of error coram or habeas corpus. question Lindley of whether time
The insane at indirectly upon appeal of his conviction was considered from judgment, and no additional prop evidence which erly presented during could have been the trial was offered plea guilty by the referee. The of not before reason of in sanity raised as defense and this court is not now Lindley’s sanity position in a to re-examine either at If, date the crime was committed or at the time of trial. insane, alleged petition, Lindley applicable in the now is procedure specified by seq. is sections et of the Penal upon Code. facts here present only relied case investigation further and consideration the Governor of (Cal. State, Const., this if so he be advised. VII, § 1; art. Roi, re De La 363].) Cal.2d 264 denied, The writ of error coram vobis is the writ of habeas corpus discharged heretofore issued is Lindley is remand- custody. ed to
Gibson, J., Shenk, J., C. Spence, J., concurred. SCHAUER, only I concur record, because J. remaining state, obedient established law of this no judgment appears alternative In the tenable. interests however, impelled justice, I am to declare that that same grave record leaves with me a doubt as to whether guilty of the crime which he convicted. The stands anomaly from the seeming foregoing in the statements arises corpus proceeding fact that this writ of habeas for a *17 coram, may way of we grounds upon vobis the which error strictly act are (For limited. of those limitations a statement People (1944), see P.2d 422, v. Gilbert 25 Cal.2d [154 In; re La Roi P.2d (1946), De Cal.2d 657] [169 363].) showing No serious contention or made that is can be warrants the writ petitioner’s coram vobis. The bulk of con application tention is directed to writ of habeas corpus only (lack recognized ground process of due of law) upon is, sought showing depends that writ on upon perjured testimony the conviction was obtained produced by prosecution falsity. knowledge with its “Proof elements, of both perjury knowledge, pre ponderance evidence, of credible indispensable” to dis charge person corpus convicted on habeas based on that theory. (In Mooney re (1937), 1,15 ; 10 Cal.2d 554] In re De La Roi (1946), supra, 264, 269.) 28 Cal.2d Thus showing by preponderance of evidence that the defendant had been convicted mistaken or false that he was in fact justify sustaining innocent would not writ releasing because, person convicted in the absence proof perjured testimony had been introduced with knowledge falsity of its part responsible on the of a repre state, sentative of the process. there would be no lack of due remedy The exclusively in such cases is committed our law governor of the state. record this proceeding apparently discloses sub- evidence, stantial Lindley’s guilt innocence, relevant which was not introduced at his trial. It also discloses that given evidence substantially sup- the trial which tended to port the apparently was, truth, verdict either or mis- false taken. It appear not responsible prosecuting does deliberately officer produced false material evidence with knowledge falsity. may of its discharge Hence we defendant.
Carter, J., and Traynor, J., concurred.