Bryson v. State

• Decision Date: 13 October 1955
• Docket Number: 8 Div. 820
• Citation: 84 So.2d 785,264 Ala. 111
• Parties: Ola Mae BRYSON v. STATE.
• Court: Alabama Supreme Court

Page 785

84 So.2d 785

264 Ala. 111

Ola Mae BRYSON v. STATE.

8 Div. 820.

Supreme Court of Alabama.

Oct. 13, 1955.

Rehearing Denied Feb. 2, 1956.

Bradshaw, Barnett & Haltom, Florence, for petitioner.

John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., opposed.

LAWSON, Justice.

Ola Mae Bryson was convicted in the circuit court of Lauderdale County of manslaughter in the first degree.

The judgment of conviction was affirmed by the Court of Appeals.

On July 15, 1955, during the Special Term, Ola Mae Bryson filed in this court her petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals. The petition was accompanied by brief.

The Attorney General on August 2, 1955, filed brief in opposition to the petition for writ of certiorari.

Thereafter on August 4, 1955, the writ of certiorari was issued in compliance with an order of this court and the Clerk on the same day wrote counsel for Ola Mae Bryson and the Attorney General as follows:

'Upon a preliminary consideration of the Petition for the Writ of Certiorari to the Court of Appeals of Alabama and of the Briefs in support thereof, this Court concluding that there is a probability of merit in the petition and that the Writ should issue,

"It is hereby ordered that the Writ issue, of which due notice shall be given by the Clerk of this Court to the parties or their counsel, and the case shall stand for submission on briefs, and likewise oral argument, if so desired, as provided by Rule 39 of the Revised Rules of the Supreme Court of Alabama.'

Rule 39 of the Revised Rules of this court, in pertinent parts, reads '* * * If the court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, it shall be so ordered, of which due notice shall be given by the clerk to the parties or their counsel, and the case shall stand for submission, as herein-provided on briefs and likewise oral argument if so desired. If oral argument is desired by petitioner, statement to that effect shall be filed with the clerk by petitioner within ten days after service on petitioner of the notice of issuance of the writ. If oral argument is desired by respondent, then he or his counsel shall, by endorsement on the last page of his brief, so state his desire. If neither party shall thus indicate a desire for oral argument, the clerk of this court shall, when briefs from all parties have been filed with him as herein provided, immediately submit the case in term time upon the transcript and such briefs. If either party shall have made known a desire for oral agrument, the clerk of this court shall endorse that fact on the proper docket and set the case down for oral hearing not less than ten days after notifying the parties, or their attorneys of record, in writing of such setting. Cases so set for oral argument shall be heard on the day set unless continued by the court for good cause shown.

'Respondent's brief shall be filed with the clerk of this court within fifteen days after service on respondent of the notice of the issuance of the writ, and if not filed within that time, or within any extended time, the cause shall stand ready for submission.'

On August 12, 1955, petitioner filed what is styled a reply brief but made no request for oral argument.

On August 25, 1955, during the Special Term, the cause was submitted on briefs, inasmuch as neither the petitioner nor the State requested oral argument in the manner and within the time prescribed in Rule 39, supra.

Following the adoption of Supreme Court Rule 45, Code 1940, Title 7, Appendix, substantial error is not presumed, but the burden is upon the appellant to show error, and before a reversal of the judgment is to be had it must appear to the appellate court that the error complained of has probably 'injuriously affected substantial rights of the parties', to use the language of the rule. Kabase v. State, 244 Ala. 182, 12 So.2d 766; Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244; Lakey v. State, 258 Ala. 116, 61 So.2d 117.

The Court of Appeals applied the doctrine of error without injury...