
    Earnest Elmo STEVENS v. STATE of Mississippi.
    No. 45739.
    Supreme Court of Mississippi.
    March 9, 1970.
    McKenzie & Kemp, Ashland, for appellant.
    A. F. Summer, Atty. Gen., by Velia Ann Mayer, Special Asst. Atty. Gen., Jackson, for appellee.
   JONES, Justice.

Appellant was convicted of grand larceny in the Circuit Court of Union County, Mississippi, from which conviction he appeals, arguing two propositions:

The first is that the trial court erred in overruling a motion by appellant for continuance on the basis of surprise following an amendment to the indictment. The indictment originally charged the theft of many articles of personal property.

At the trial, the district attorney asked to amend by eliminating all of said articles except four. Appellant claimed surprise and asked for a continuance because he had prepared to meet the indictment, which contained many other items, and had a witness who would testify that various of the articles eliminated by the amendment were not stolen. The court permitted the amendment and overruled the motion for continuance. Of course, there was no error in this.

The second point argued, was an attack on the attorney who tried the case in lower court, claiming that said attorney was guilty of improper and questionable representation; which, in effect, denied appellant due process of law under the Fifth and Fourteenth Amendments.

The examination of the record discloses that the attorney ably represented the appellant and manifested competence and ability. The attack on him is by ex parte affidavits attached to the petition which, of course, we cannot consider.

Appellant also files with his brief herein a motion for alternate relief requesting that he be granted permission to file a petition for error coram nobis.

This petition is untimely filed and not in the form required.

We are affirming the conviction and denying the petition for alternate relief, such denial of the petition being without prejudice.

Conviction is affirmed and the petition for alternate relief denied without prejudice.

GILLESPIE, P. J., and BRADY, IN-ZER, and ROBERTSON, JJ., concur.  