McIntyre v. State

139 So. 2d 618, 41 Ala. App. 486, 1961 Ala. App. LEXIS 286

• Court: Alabama Court of Appeals
• Decided: November 28, 1961
• Docket: 3 Div. 84
• Status: Published

Opinion

CATES, Judge.

This is an appeal from a judgment of the Montgomery Circuit Court in a habeas corpus proceeding brought by McIntyre seeking his liberation from durance vile in Kilby Prison.

The return of the warden was fortified by two certified copies of mittimuses from the Circuit Court of Mobile County, each showing indictment, trial, verdict and judgment of conviction in two charges of assault with intent to murder. McIntyre’s sentences run, respectively, for twelve and eight years for the two offenses, the longer being -set as the first to be served. These documents are regular on their face, and coming from a court of general jurisdiction are .sufficient answer to the petition for habeas corpus.

Our statute and the decisions thereunder do not permit the use of habeas corpus as an appellate device from a judgment of a .court having jurisdiction of the subject matter. Accordingly, the order of the circuit .court discharging the writ and remanding McIntyre to the custody of the warden of Kilby Prison is due to be and hereby is

Affirmed;