6 Div. 101.
August 17, 1965. Rehearing Denied August 31, 1965.
Appeal from the Circuit Court, Jefferson County, Wallace Gibson, J.
Percy B. Watkins, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.
This appeal from denial of habeas corpus was submitted May 6, 1965.
The appellant was originally convicted on his plea of guilty. However, since he had no lawyer at arraignment, the trial judge, on coram nobis, later set the judgment aside and ordered another trial. Pending his new trial, he is now in the Jefferson County jail in default of bail.
The appellant seeks to stay his again being brought to book on the six pending indictments. He would try to carve out of a procedural error — albeit of constitutional proportions — a vested right of immunity from further prosecution.
No court has adjudged that any of the indictments against Carty is void. See 21 Am.Jur.2d, Crim.Law, § 209.
The Federal courts accord State prosecutors a reasonable time to retry successful petitioners for habeas corpus. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Wiman v. Powell, 5 Cir., 293 F.2d 605; Wiman v. Argo, 5 Cir., 308 F.2d 674, 676. 28 U.S.C. § 2243, last paragraph provides: "The court shall * * * dispose of the matter as law and justice require." Cf. Holdsworth, History of English Law, IX 118.
Double jeopardy, if any, can be claimed by special plea. Circuit Ct. Rule 30, 1st sent.; Code 1940, T. 15, § 288.
The judgment below is due to be
Carty's application says there was no petition for a writ of error coram nobis before the circuit court.
The caption no more determines the purpose of a pleading than a label shows what is in a package.
Setting aside a sentence whilst a habeas corpus petition is before him is, on this record, within the trial judge's scope of duty in carrying out the mandate of Hamilton v. State of Alabama, supra.