PAIVA v. <<

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District Court of Appeal, Third District, California.

Application of CARR. IN RE: PAIVA.

Civ. 7309.

Decided: January 25, 1947

Arthur De Beau Carr, of Sacramento, for petitioner. Robert W. Kenny, Atty. Gen., Jas. O. Reavis, Deputy Atty. Gen., John Quincy Brown, Dist. Atty., and John B. Heinrich, Deputy Dist. Atty., both of Sacramento, for respondent.

After a judgment of conviction of Siverino Paiva for the crime of murder had been affirmed on appeal in August, 1935 (People v. Paiva, 9 Cal.App.2d 10, 48 P.2d 174), petitioner filed on August 26, 1946, in the Superior Court of Sacramento County a petition, in behalf of said defendant, for a writ of error coram nobis, to vacate the judgment. That proceeding was duly tried. At that hearing oral evidence was adduced and recorded by the official court reporter. At the conclusion of that trial the writ was discharged and the judgment of conviction was affirmed. The petitioner filed a written notice of appeal together with a notice for preparation of the transcript of evidence as required by Section 953a of the Code of Civil Procedure. No undertaking to secure the payment of the cost of transcript was filed as required by Section 953b of said code. The county clerk therefore declined to order the transcription of the evidence.

On the theory that the proceeding in coram nobis, to vacate a judgment, is a criminal action which would entitle petitioner to the reporter's transcript for the purpose of appeal, to be paid for ‘out of the county treasury’, as provided by Section 274 of the Code of Civil Procedure, he applied to the trial court for an order to that effect. An order to show cause why the transcript should not be furnished was thereupon served on the County Clerk. The order to show cause was heard by said Superior Court on June 14, 1946. Both parties were represented by counsel. After hearing and arguments the court determined that the proceeding in coram nobis is a civil and not a criminal cause, and that the court was not authorized to order the transcript to be prepared at the expense of the county under Section 274 of the Code of Civil Procedure. The court then made its order determining that petitioner was entitled to the transcript at his own expense and not at the expense of the county. From that order the petitioner gave notice of appeal to this court. The notice of appeal is from that portion of the order which determines that the proceeding in coram nobis is a civil cause and not a criminal case, and which refuses to direct payment for the transcript from the county treasury.

We are of the opinion that the proceeding in coram nobis was an independent cause for extraordinary remedy to set aside the judgment of conviction of Siverino Paiva, as void for extrinsic fraud, dependent upon proof of material facts which were not adduced or considered by the court at the trial of the criminal case, and which, if adduced, would have required the rendering of a different judgment; that the coram nobis proceeding is civil in its nature, and not criminal, in spite of the fact that it sought to vacate the judgment of conviction in a criminal case. The trial court therefore properly held that petitioner was not entitled to the reporter's transcript at the expense of the county. Secs. 274 and 953a, 953b, C.C.P. The great weight of authority determines that a writ of error coram nobis is a civil proceeding, and not a criminal case. State v. Gentry, Ind.Sup., 62 N.E.2d 860, 161 A.L.R. 532; 24 C.J.S., Criminal Law, § 1606a, p. 144; 2 Am.Jur. p. 845, sec. 4; 3 Am.Jur. p. 766, sec. 1276; 31 Am.Jur. p. 322, sec. 799, and p. 328, sec. 814. The writ is available under proper circumstances, to set aside a judgment, when there is no other adequate remedy, and is applicable to either criminal or civil judgments. 34 C.J. 392, sec. 603. In Section 605 of the last-cited authority it is said: ‘A writ of error coram nobis lies for an error of fact, not appearing on the face of the record, which fact was unknown to the court, and which, if known in season, would have prevented the rendition and entry of the judgment challenged.’

In 24 Corpus Juris Secundum, Criminal Law, § 1606, at page 144, it is said: ‘A proceeding for a writ of error coram nobis or its statutory equivalent is in the nature of a new, civil suit, not unlike a bill of review to have reviewed a decree in chancery, and has a function closely analogous to a motion for a new trial, although it cannot be substituted therefor. The writ supplements, but does not supersede, the remedy provided in the statute for the granting of new trials or the correction of errors. It is generally held applicable in criminal as well as civil cases although there is authority to the contrary.’

In the Gentry case, supra, after judgment of conviction of murder had been rendered against the defendant Stephenson, he sought to vacate that judgment by means of a writ of error coram nobis. A motion for a change of venue was denied on the theory that it was a part of the original criminal action. Upon review of a petition for a writ of mandate to compel the trial court to grant the change of venue, the Supreme Court of Indiana, quoting with approval from State v. Spencer, 219 Ind. 148, 41 N.E.2d 601, said with relation to the proceeding in coram nobis:

“Under the great weight of reason and authority, the petition for the writ of error coram nobis must be considered a new proceeding, civil in nature,—a remedy by which relief may be had from an unconscionable judgment.'

‘* * * Under the common law it was not triable by jury and since under our constitution only those actions are triable by jury which were so triable by common law or so made by statute, a jury cannot be demanded or awarded.

‘We have repeatedly held that a coram nobis proceeding is in the nature of a motion for new trial and that it is also in the nature of a civil action. It is in the nature of the former because its object is to secure the setting aside of a judgment and a retrial of the matter upon which judgment had been rendered. It is in the nature of the latter because it presents a new and different cause for trial wherein the burden of proof is on him who requests relief from the judgment. It is not a trial of the original cause, but merely a determination of whether or not some fact or facts were in existence but unknown to the moving party and to the court which, if known, would have caused the court to rule differently.

‘While in the instant case the judgment involved is one rendered in a criminal cause, the purpose of the proceeding is to set aside the judgment and it is immaterial that the judgment is the outcome of a criminal action. We do not believe that it can be classified as a criminal action merely because it attacks a judgment obtained in that kind of case, and as a civil action when attacking a civil judgment.’ [62 N.E.2d 861.]

We conclude that this proceeding for a writ of error coram nobis is civil in its nature, and not criminal, and that the trial court, therefore, properly refused to order the county clerk to have the transcript of evidence prepared at the expense of the county. The petitioner, however, will be entitled to a transcript of the evidence and proceedings, at his own expense, when he conforms to the provisions of the statute in that regard.

We are of the opinion that an appeal lies under Section 963 of the Code of Civil Procedure from a judgment denying a petition for error coram nobis and affirming the judgment which is sought to be vacated by that proceeding. If the coram nobis proceeding is a civil action, as we have held that it is, it would follow that an appeal would lie from a final judgment therein under said section of the code. Our courts have repeatedly recognized the right of appeal from a judgment which was rendered in a proceeding in coram nobis to vacate a former judgment of conviction in a criminal case. People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657; People v. Reid, 195 Cal. 249, 232 P. 457, 36 A.L.R. 1435; People v. Butterfield, 37 Cal.App.2d 140, 99 P.2d 310; People v. Zolotoff, 48 Cal.App.2d 360, 119 P.2d 745; People v. Kretchmar, 23 Cal.App.2d 19, 72 P.2d 243. In the Gilbert case, supra, 25 Cal.2d at page 439, 154 P.2d at page 666, the Supreme Court said:

‘The People, with more regard for established processes, classify the defendants' motions [to set aside or modify a judgment imposing the death penalty for murder] as constituting applications for relief in the nature of writs of error coram nobis. We are in accord with this classification.’

Assuming that the writ of error coram nobis is a proceeding separate and distinct from the original trial which resulted in the judgment sought to be vacated, and that an appeal lies from the judgment granting or denying the writ, it follows that an appeal would also lie from the order made after final judgment in the coram nobis proceeding denying petitioner's application for an order of court requiring the transcription of evidence as provided by Sections 953a and 953b of the Code of Civil Procedure. Section 963 of the Code of Civil Procedure provides that an appeal may be taken ‘from any special order made after final judgment.’

The order denying petitioner's application for an order of court to require the transcription of evidence at the expense of the county is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.

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