Ex parte Livingston

61 So. 885 | Ala. | 1913

de GBAFFENBIED, J.

In this case the defendant, Morris Livingston, was convicted of a felony, and appealed from the judgment of conviction to the Court of Appeals. The Court of Appeals, after considering the case, entered up a judgment reversing the judgment of the lower court. Thereupon the state, through the Attorney General, filed a petition in this court for a writ of certiorari in said case to said Court of Appeals, and upon a consideration of the said petition the writ of certiorari was granted, the judgment of the Court of Appeals was reversed, and the cause was remanded to that court for further proceedings in that court. Thereupon the Court of Appeals rendered a judgment in the cause, affirming the judgment of the lower court.

We have read the first opinion which was handed down by the Court of Appeals in this case, and in that opinion, that court discusses and decides adversely to the defendant every question which, in the present proceeding, the defendant presents to us. If, when this case was-first before this court, the defendant was then of opinion that the rulings of the Court of Appeals of which he now complains were erroneous, he might then well have advanced the arguments which he now makes as reasons why the judgment of the Court of Appeals, reversing the judgment of the court below, should have been sustained. This the defendant did not do, and he now undertakes, by this proceeding, to obtain rulings from this court upon questions which it did not then consider, although, if there is any merit in any of the defendant’s contentions, it might have then done so. This being the situation, we see no reason why this court should entertain the petition for the writ of certiorari.

A writ of certiorari is not a writ of right, until made so by statute. It will not be granted, unless substantial justice requires that it shall be granted. — Independent Publishing Co. v. American Press Ass’n, 102 Ala. 475, 15 South. 947. In our opinion, substantial justice does not require the granting of the writ prayed for in this case.

The writ of certiorari is therefore denied.

All the Justices concur, except Dowdell, C. J., not sitting.