Summary
In Ex parte Williams, 255 Ala. 648, 53 So.2d 334, an original application for leave to proceed at nisi prius by way of coram nobis was denied because the Supreme Court, not having entertained an appeal, had no jurisdiction of a request for such leave.
Summary of this case from Shuttlesworth v. StateOpinion
3 Div. 601.
June 14, 1951.
Appeal from the Circuit Court of Montgomery County.
M. Ashley Dickerson, Montgomery, for petitioner.
Petition for leave to file petition for writ of error coram nobis is the proper remedy in this case; failure of appeal does not deprive him of the right to file this petition. Petition may be treated as appeal from denial of habeas corpus. Alexander, Law of Arrest, 328; Pyle v. State of Kansas, 317 U.S. 213, 214, 63 S.Ct. 177, 87 L.Ed. 214; Hysler v. State of Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932; Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683; Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308; Barton v. City of Bessemer, 27 Ala. App. 413, 173 So. 621.
Si Garrett, Atty. Gen., and A. A. Carmichael, Asst. Atty. Gen., for the State.
No appeal was taken to this court from the judgment of conviction. This court has never had any connection in the case and is without jurisdiction to grant the petition here made. Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683; Smith v. State, 245 Ala. 161, 16 So.2d 315.
This is an original application to this court by Essie Q. Williams for leave to apply to the Circuit Court of Montgomery County for a writ of error coram nobis to review the action of that court in adjudging the petitioner guilty of grand larceny and sentencing him to the penitentiary for a term of ten years. If the facts alleged in the petition are true, there has been a gross abuse of judicial processes superinduced by fraud practiced on the court to the hurt of petitioner in depriving him of his liberty without due process of law.
The circuit court is a court of unlimited, original jurisdiction in respect to the enforcement of the criminal laws of the state and petitioner has a right to seek relief in that court under the constitution by proper pleadings and proof showing with reasonable certitude that the facts alleged are true. Ex parte Taylor (Taylor v. State), 249 Ala. 667, 32 So.2d 659; Constitution of 1901, §§ 6 and 13.
Application to this court for leave to proceed in the circuit court is necessary only in cases where this court has assumed and exercised its appellate jurisdiction to review the judgments of nisi prius courts on appeal or writ of error and through such review the judgment of the trial court has become merged in the judgment of the Supreme Court. It is not made to appear that the judgment of the circuit court was reviewed on appeal to this court or otherwise, hence the application for leave to proceed is without merit. Smith v. State, 245 Ala. 161, 16 So.2d 315; Wheeler v. Wheeler, 254 Ala. 611, 49 So.2d 219.
The motion of the Attorney General to dismiss the petition is therefore due to be granted. Johnson v. Williams as Warden, 244 Ala. 391, 13 So.2d 683.
Motion to dismiss the petition granted.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur.