Ex Parte Thomas
Lead Opinion
On Rehearing
Application for .rehearing overruled.
It is nоt made to appear that the judgment of conviction in the circuit court
Lead Opinion
Richard J. Thomas filed in this court an original petition for writ of habeas corpus wherein it is made to appear that he is presently serving a 25 year sentence in Kilby Prison under a conviction of carnal knowledge of a girl under 12 years of age.
The writ of habeas corpus is issued by this court only when necessary in the еxercise of the “general superintendence and control of inferior jurisdictions” with which it is clothed by § 140 of the Constitution. The necessity which will authorize the issuance of the writ in this court does not exist unless the judge of some cоurt invested with jurisdiction to act in the premises has undertaken to decidе upon the case of a party aggrieved or else, without any just cause therefor, has refused to entertain the same. Ex parte Winnаgle,
Thomas avers in the petition filed in this court that he filed a petition for writ of habeas corpus in the Circuit Court of Montgomery County and that Judge Carter, one of the judges of that court, wrote him as follows: “I am returning your petition for habeas corpus as it shows on its face that it is insufficient.”
Niceties of pleading are not favored in habeas corpus proceedings. A petition which substantially complies with the provisions of § 4, Title 15, Code 1940, and its corollary statutes is all that is necessary to sеcure the writ and bring before the judge the petitioner and his cause оf detention. State v. Thurman,
Section 8, Title 15, Code 1940, provides for the issuanсe of the writ unless it appears from the petition itself or from the dоcuments thereto annexed that the person so restrained is not entitled to the benefit of the writ. State ex rel. Attorney General v. Speake,
The petition which Thomas avers he presented to Judge Carter is not before us. As far as we are advised that petition failed to сomply with the requirements of § 4, Title 15, Code 1940, to such an extent that it showed оn its face that Thomas was not entitled to the benefit of the writ. § 8, Title 15, Code 1940.
The return of such a petition is not the necessity which will authorize the issuance of the writ by this court.
Thomas has not presented to this court a petition or application which discloses that Judge Carter has еrred to his prejudice and that upon the case made beforе Judge Carter he is entitled to the relief which he seeks. Ex parte Winnaglе, supra.
Thomas has also failed to make out a case for the issuance of the alternative writ of mandamus to Judge Carter as is prаyed for in his so-called “Supplemental Amendment to Petition for Habeas Corpus.”
In his original petition for writ of habeas corpus Thomas alleged that he is entitled to his release because he was cоnvicted on false testimony. In his so-called “Second Supplemental Amendment Petition for Habeas Corpus” he avers in effect that he is еntitled to his release because he was denied his constitutional right to cross-examine witnesses.
Without in any way passing on the sufficiency of suсh allegations to warrant .relief in another type of procеeding, we observe that they are not sufficient to warrant petitioner’s release in a habeas corpus proceeding. Griffin v. State,
Writs denied.