People v. Smith

EDMONDS, J.

I concur in the conclusion that, as a matter of right upon an appeal from a judgment of conviction, the defendant is entitled to a reporter’s transcript at the expense of the state. However, I disagree with the classification of In re Paiva, 31 Cal.2d 503, as “a criminal case.”

Ten years after he was convicted, Paiva commenced a proceeding for relief from the judgment by a writ of error coram, nolis. The application made by him for a transcript of the evidence offered and received upon the issue of his right to such a writ was made upon the ground that, without it, he could not adequately present his appeal from an adverse order. By long usage, an application for a writ of error coram, nolis has been regarded as civil in nature and, in my opinion, there is no sound basis for placing it in the category of a criminal action.

For the reasons which I stated in the Paiva case (31 Cal.2d at p. 511), I do not consider that decision to be an authority which should control the decision upon the present application for a transcript. Obviously one who is appealing from a judgment of conviction is in an entirely different position from a petitioner who is seeking to set aside a judgment by a proceeding which has been characterized as a “collateral attack” upon it. (People v. Superior Court, 4 Cal.2d 136 [47 P.2d 724].)