Thorn v. State

98 So. 2d 860 | Ala. | 1957

Hosea Thorn was convicted in the circuit court of Franklin County of the offense of assault with intent to murder. On appeal to the Court of Appeals the judgment of conviction was set aside on the ground that "The purported indictment in the record here is only an accusation of assault with intent to murder subscribed by the solicitor without the endorsement 'a true bill,' and for the want thereof does not support the judgment."

The Attorney General on behalf of the State filed an application for rehearing accompanied by a motion or request that the Court of Appeals set aside the original submission, withdraw its opinion theretofore issued and "grant unto the State of Alabama a writ of certiorari directed to the Clerk of the Circuit Court of Franklin County ordering him to send up a true and complete copy of the indictment preferred against the appellant."

The application for rehearing was overruled and the motion denied by the Court of Appeals.

The State has filed in this court its petition for certiorari or "other appropriate writ."

The State does not contend that the Court of Appeals erred in holding that the indictment which appears in the record is insufficient to support the judgment of conviction. But the State does contend that the Court of Appeals erred in refusing to set aside the submission, withdraw its opinion and issue certiorari to correct the record.

The motion filed by the State after submission could have been granted by the Court of Appeals if it had been so inclined. But the State was not entitled to such relief as a matter of right. Clark v. State, 8 Ala. App. 105, 62 So. 987. The Court of Appeals having exercised its discretionary power, this court will not act to the contrary. See Huddleston v. State, 37 Ala. App. 57, 64 So.2d 90, certiorari denied,258 Ala. 579, 64 So.2d 102.

Petition denied.

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