Ex parte Baxter

171 So. 2d 107 | Ala. Ct. App. | 1964

Baxter appears to ignore our affirming a judgment of the Walker Circuit Court denying coram nobis November 26, 1963.

Now for the first time Baxter claims double jeopardy because his twenty year sentence for assault with intent to murder his wife arose out of the same shooting episode which had led to his earlier conviction for assault and battery on his thirteen year old daughter.

However, there was substantial evidence¹ on the trial for shooting his wife that he first shot his daughter. Next he fired wild, then walked over to the sofa on which his wife lay. Standing over her he fired point blank into her shoulder. The bullet ranged downward into her lung.

A full reading of Gunter v. State, 111 Ala. 23, 20 So. 632, cited by Baxter, manifestly supports the prosecution's making two cases of these separate assaults.

Nothing else new is advanced in Baxter's present requests. Though he wraps his petitions with labels calling for writs of error, yet the content is neither error nor appeal. See Code 1940, T. 15, § 383, last sentence.

Denial of coram nobis is quasi res judicata. Moreover, a writ of error will not lie to review a denial of coram nobis because appeal from coram nobis is exclusive. The time to appeal lapsed. Allen v. State, 42 Ala. App. 9, 150 So.2d 399.

Denied.

¹ Introduced at the coram nobis hearing.