
    Glenn SHORT, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Glenn Short, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   MILLIKEN,

Chief Justice.

The question presented by this appeal is whether the lower court properly dismissed the petition of habeas corpus.

Appellant, Glenn Short, was found guilty of the crime of armed robbery at the September, 1963, term of the Fayette Circuit Court and given a life sentence. He did not appeal the conviction to the Court of Appeals and was confined in the State Penitentiary at Eddyville. On April 29, 1964, he filed a petition for habeas corpus in the Lyon Circuit Court. A hearing was held on the petition and the court sustained the motion of the Commonwealth to dismiss on the ground that the prisoner had not exhausted the remedy available to him under RCr. 11.42.

The lower court properly dismissed the petition for the reason that appellant had not attempted to obtain relief by a motion under RCr. 11.42 and there was no showing that the remedy by such motion is inadequate. Ayers v. Davis, Ky., 377 S.W.2d 154; Jones v. Thomas, Ky., 377 S.W.2d 155; Burton v. Thomas, Ky., 377 S.W.2d 155.

The judgment is affirmed.

Judge Montgomery dissents on the grounds stated in Ayers v. Davis, Ky., 377 S.W.2d 154, 878.  