Luallen v. State

*331OPINION

WALKER, Presiding Judge.

Luallen appeals from the dismissal of his petition for post-conviction relief after an evidentiary hearing. In June 1950 he was convicted of first degree murder and sentenced to 99 years in the penitentiary. His retained counsel appealed and the Supreme Court affirmed his conviction.

After the evidentiary hearing, the trial judge took the case under advisement and filed his opinion and findings in which he fully considered all of the petitioner’s contentions and found them without merit. The record sustains his findings.

Most of the petitioner’s assignments, as the trial judge found, were presented to the Supreme Court and decided adversely to him in an opinion of which we take judicial notice. The Supreme Court reviewed the case in which the petitioner and a codefendant did not testify. He was convicted largely on the testimony of an accomplice which was thoroughly corroborated. Habeas corpus or post-conviction proceedings may not be employed to raise and relitigate or review questions decided and disposed of in a direct appeal after conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667; T.C.A. Secs. 40-3811—40-3812.

The petitioner did not testify in this proceeding although the trial judge and his attorney gave him every opportunity to sustain his allegations.

He contends particularly that the trial judge should have granted his motion for a charge of venue *332and that he did not have a fair trial under the rules set out in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.

The Supreme Court approved the trial judge’s ruling on the motion for a change of venue and nothing presented here along with the original record shows any violation of his rights.

He complains of the large crowd in attendance at his trial. The number of jurors summoned was large but the proof shows that those present in Kingston were calm and orderly. Most of the publicity of which he complains was contained in Knoxville and Chattanooga newspapers and a detective magazine. This publicity required the trial judge to order a large panel of jurors, but there is nothing to show that the jury was not fair. Unlike the Shepard jury, it was sequestered, even though a photograph of it was made by a reporter outside the courthouse. The petitioner received a fair trial and was not prejudiced by unfavorable publicity.

His search and seizure assignments are likewise without merit. While attempting a robbery, the petitioner was himself shot by his victim. At the hospital, his doctor gave to the sheriff the bullet he had extracted from the petitioner. This was done by a private citizen and was not a search by an official. Petitioner’s wife gave permission to an officer to search petitioner’s home. It disclosed half a lemon, about which the State’s witness testified. This search was not unlawful.

The finding of the trial court is conclusive against the petitioner upon questions of fact unless we are able to find that the evidence preponderates against *333the judgment of that court. State ex rel. George v. Johnson, 217 Tenn. 1, 394 S.W.2d 641; State ex rel. Lawrence v. Henderson, Tenn.Cr.App., 433 S.W.2d 96.

All assignments of error are overruled, and the judgment of the trial court is affirmed.

This case was heard and submitted to the Court prior to the enactment of Chapter 330 of the Public Acts of 1969 increasing the membership of the Court.

OLIVER, J., concurs.