Ex Parte Smith

155 So. 2d 297 (1963)

Ex parte Joe SMITH.

3 Div. 78.

Supreme Court of Alabama.

June 27, 1963.

*298 Joe Smith, pro se.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

GOODWYN, Justice.

This is an original habeas corpus petition filed here by Joe Smith, who is confined in Kilby Prison under sentences of ten years for first degree burglary and two years for assault with intent to murder. Both sentences were imposed by the circuit court of Walker County.

It appears from the petition that, on April 1, 1963, Smith applied to a judge of the circuit court of Montgomery County for a writ of habeas corpus. Code 1940, Tit. 15, § 6. It further appears that the writ was issued, that a return thereto was made by the warden of Kilby Prison, and that a hearing was held before the circuit judge on May 7, 1963. On the same day, the judge entered an order denying Smith's release and remanding him to the custody of the respondent warden.

The State has moved to strike the petition on the ground, among others, that the proper method of reviewing the circuit judge's action is by appeal, and not by original petition for habeas corpus addressed to this court. The motion is well taken. Code 1940, Tit. 15, § 369; Ex parte Smotherman, 140 Ala. 168, 170, 37 So. 376; Keene v. Wiman, 274 Ala. 219, 147 So. 2d 817; Johnson v. Williams, 244 Ala. 391, 393, 13 So. 2d 683; Vernon v. State, 240 Ala. 577, 579, 200 So. 560, cert. den. Vernon v. Wilson, 313 U.S. 559, 61 S. Ct. 837, 85 L. Ed. 1519; Ellis v. State, 41 Ala.App. 438, 135 So. 2d 814, cert. den. 273 Ala. 707, 135 So. 2d 815, cert. den. 368 U.S. 932, 82 S. Ct. 369, 7 L. Ed. 2d 195, cert. den. 369 U.S. 807, 82 S. Ct. 650, 7 L. Ed. 2d 554.

Aside from the foregoing, petitioner was properly denied his release because none of the grounds of the petition challenges either the jurisdiction of the Walker County circuit court or the regularity of the proceedings therein on their face. Keene v. Wiman, 274 Ala. 219, 147 So. 2d 817, 818, supra; Griffin v. State, 258 Ala. 557, 558, 63 So. 2d 682; Johnson v. Williams, supra; Vernon v. State, supra.

The motion to strike the petition is due to be granted.

Petition stricken.

LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.