Mills v. State

171 So. 2d 844 | Ala. | 1965

This is a "petition for writ of error to the Circuit Court of Tuscaloosa County, Tuscaloosa, Alabama, to review judgment of conviction of carnal knowledge, criminal case No. 6333-A" on the part of William R. Mills, a state convict. The State filed a motion to strike the petition and it is well taken.

The appropriate remedy to raise the errors here complained of is by petition for writ of error coram nobis filed in the trial court and reviewed on appeal in this Court. Hence, the petition for writ of error does not lie. — Tit. 15, §§ 380(14)-380(25), Code of Ala., as recompiled in 1958, as amended 1963; Ex Parte Busby, 275 Ala. 472, 156 So.2d 158.

But if the remedy here pursued were appropriate, the petition would still be unmeritorious.

The State's motion shows that all the grounds contained in the present petition, save one, were before this Court on a petition for writ of error coram nobis, reported as Mills v. State, 275 Ala. 217,153 So.2d 650, cert. den. 375 U.S. 867, 84 S.Ct. 142,11 L.Ed.2d 95. The new ground now sought to be raised by this petitioner is that there was no warrant for his arrest and that he had no preliminary hearing. This ground is not supported by the evidence, but to the contrary the State attaches to its motion as "Exhibit A" the warrant for petitioner's arrest, dated April 23, 1959. And of course there was no request for a preliminary hearing and such a ground is without merit for post-conviction relief. Latham v. Crouse, 10 Cir.,320 F.2d 120; Green v. Bomar, 6 Cir., 329 F.2d 796; Aaron v. State,271 Ala. 70, 122 So.2d 360; Davis v. State, 42 Ala. App. 374,165 So.2d 918, cert. den. 276 Ala. 703, 165 So.2d 927.

This petition is repetitious of the original petition for writ of error coram nobis, is without merit, and the State's motion to strike is well taken. Ex Parte Phillips, 277 Ala. 82,167 So.2d 165.

Motion granted.

LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.