Duncan v. State, 7 Div. 785
| Citation | 169 So.2d 439,42 Ala.App. 509 |
| Decision Date | 24 November 1964 |
| Docket Number | 7 Div. 785 |
| Parties | Dan DUNCAN v. STATE. |
| Court | Alabama Court of Appeals |
Dan Duncan, pro se.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
This is an appeal from a judgment of the Circuit Court of Talladega County, Alabama, denying the appellant's petition for a writ of error coram nobis.
The appellant was arrested in Kansas in February, 1959, and shortly thereafter was tried and convicted in federal court for a violation of the Dyer Act and was sentenced to three years. While the appellant was serving this sentence in the Federal Penitentiary at Leavenworth, Kansas, a detainer was placed against him by the Sheriff of Talladega County, Alabama, on a charge of robbery allegedly committed in that County on February 12, 1959. On June 17, 1959, while confined in the federal penitentiary, the appellant filed a writ of habeas corpus ad prosequendum with the Clerk of the Circuit Court of Talladega County requesting that he be accorded his constitutional right to a fair trial. That writ was never answered.
The appellant was indicted by the Grand Jury of Talladega County on September 30, 1959, for the alleged robbery of February 12, 1959, and upon his release from the federal penitentiary in May, 1961, he was taken into custody and returned under proper authority to Talladega County by the Sheriff of that County to stand trial under this indictment. Trial was had under a plea of guilty on September 14, 1961, in the Circuit Court of Talladega County, and, in accordance with the jury's verdict, the appellant was adjudged guilty of robbery and sentenced to ten years in the state penitentiary.
The appellant filed a petition for writ of error coram nobis in the Circuit Court of Talladega County on March 6, 1964, alleging, among other things, that he was denied his constitutional right to a speedy trial. The court below denied this petition on May 15, 1964, and hence this appeal.
Judge Merrill, in speaking for the Supreme Court of Alabama, in the case of Ford v. Presiding Judge, Twentieth Judicial Circuit, Ala., 167 So.2d 166, quoted the well established rule adopted in McCary v. Kansas, 10th Cir., 281 F.2d 185:
Moreover, the function of the writ of error coram nobis is not to relieve a party of his own...
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...of Melton, 342 P.2d 571 (Okl.Cr., 1959); Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920). To the same effect: Duncan v. State, 42 Ala.App. 509, 169 So.2d 439 (1964); Ford v. Presiding Judge, Twentieth Judicial Circuit, 277 Ala. 83, 167 So.2d 166 (1964); State v. Hall, 266 Minn. 74, 123 N......
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