Ex parte Campbell

162 So. 2d 617, 276 Ala. 407, 1964 Ala. LEXIS 360

• Court: Supreme Court of Alabama
• Decided: April 2, 1964
• Docket: 6 Div. 84
• Status: Published

Opinion

HARWOOD, Justice.

This is a petition for a writ of mandamus seeking to compel the Circuit Court of Tuscaloosa County to dispose of a petition for a writ of error coram nobis filed by-petitioner in that court, and to dispose of a motion accompanying the petition for writ of error coram nobis requesting that petitioner be furnished “all records and transcript of petitioner’s trial” held in Tuscaloosa on 13 August 1951.

In that trial, the petitioner here was convicted of rape and sentenced to death. His judgment .of conviction was reviewed by this court and affirmed. Campbell v. State, 257 Ala. 322, 58 So.2d 623. Apparently his death sentence was commuted.

A reading of the opinion, supra, discloses that this petitioner had, shortly before the crime for which he was convicted, escaped with two other convicts from Draper Prison. They made their way to Tuscaloosa County. Entering a rural home, they compelled a housewife therein with her two young children, to alter some of her husband’s clothes. Upon completion of this altering chore, the petitioner, at gun point, took the housewife to an upstairs room and viciously raped her.

The Attorney General has filed a motion to dismiss this petition for a writ of mandamus on the grounds that petitioner, prior to filing his petition for writ of error coram nobis in the Circuit Court of Tuscaloosa County, did not first obtain leave of this court to file such writ.

The motion to dismiss is well taken.

Where a judgment of conviction has been affirmed on appeal, leave to file a petition for a writ of error coram nobis must first be obtained from the affirming court prior to filing such a petition in the Circuit Court. See 7 Ala.Dig., Crim. Law, ^997(14) for numerous authorities to this effect.

Petition dismissed.

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