Opinion
7 Div. 199.
March 27, 1973. Rehearing Denied May 15, 1973.
Appeal from the Circuit Court, Calhoun County, William C. Bibb, J.
Jerry B. Oglesby, Anniston, for appellant.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Appellant, James Thomas Caver, was jointly tried with co-defendant, Jerry White, for Murder in the First Degree, and both defendants were convicted of Murder in the Second Degree on February 17, 1969. The sentence was 50 years for each defendant. Thereafter, defendant White appealed his conviction which was affirmed by this Court. Defendant Caver, Appellant herein, did not appeal from his conviction, but filed his petition seeking Writ of Error Coram Nobis in the trial court on October 13, 1971. The trial judge, finding Appellant to be indigent, appointed an attorney to represent Appellant at said hearing and provided ample time for the preparation of the hearing.
After hearing on Petition for Writ of Error Coram Nobis, the trial court denied the Writ and petitioner appealed to this Court. The trial court appointed petitioner counsel for this appeal.
Appellant raises three (3) substantial questions on appeal. They are:
(1) That a pre-indictment lineup at which defendant was identified, was conducted without counsel in violation of his 6th Amendment rights.
(2) That the lineup was unnecessarily suggestive and conducive to mistaken identification so as to be a denial of due process of law.
(3) The petitioner was illegally arrested on a charge of vagrancy as a "pretext", and therefore, the arrest and subsequent conviction were illegal.
Although we are convinced that under the within facts and circumstances none of the above enumerated grounds can be properly raised by Petition for Writ of Error Coram Nobis, we take note of the fact that these questions were duly raised on appeal by Jerry White, co-defendant with Appellant, and all of said contentions were resolved by this Court in favor of the State of Alabama, and against White. White v. State, 48 Ala. App. 334, 264 So.2d 565.
We have considered the entire record as required by Title 15, Sec. 389, of the Alabama Code of 1940, Recompiled 1958, and conclude that the trial court committed no error in denying Appellant's writ.
The foregoing opinion was prepared by Hon. J. Edward Tease, Circuit Judge, temporarily on duty on the Court pursuant to sub-section (4) Title 13, Section 38, Code of 1940, as amended; the Court has adopted his opinion as its own.
The judgment below is hereby
Affirmed.
CATES, P. J., and ALMON, TYSON, HARRIS and DeCARLO, JJ., concur.