Burch v. State
| Decision Date | 13 March 1947 |
| Docket Number | 4 Div. 435. |
| Court | Alabama Supreme Court |
| Parties | BURCH v. STATE. |
Certiorari to Court of Appeals.
Wm. N. McQueen, Atty. Gen., and Bernard F. Sykes Asst. Atty. Gen., for the petition.
A L. Patterson, of Phenix City, opposed.
Ben Burch was convicted in the circuit court of Russell County of distilling or manufacturing prohibited liquor. The Court of Appeals reversed the judgment of conviction because of a portion of the argument of the solicitor for the State. Application for rehearing, duly filed by the State, was overruled by the Court of Appeals on October 8, 1946.
On October 23, 1946, the State filed in the office of the clerk of this court its application for writ of certiorari, which application was accompanied by a brief in support thereof. The application and brief were filed together and to the application was affixed a certificate of counsel for the State in the following language: 'I, _____, one of the attorneys of record for the petitioner, do hereby certify that a copy of the above and foregoing petition for certiorari to the Court of Appeals, together with a copy of petitioner's brief, was forwarded by United States mail postage prepaid, to Mr. A. L. Patterson, Attorney at Law, Phenix City, Alabama, attorney for appellant, on the 23rd day of October, 1946.' (Emphasis supplied)
Thereafter, on November 1, 1946, counsel who represented Burch in the Court of Appeals filed in this court a motion to strike or dismiss the State's application for writ of certiorari and brief in support thereof on the ground that Supreme Court Rule 44, Code 1940, Tit. 7 Appendix, had not been complied with in that a copy of the brief filed in support of the application was not served on counsel for Burch within fifteen days after the Court of Appeals overruled the State's application for rehearing.
It is without dispute that counsel for Burch did not receive a copy of brief filed by the State in support of the application until October 24, 1946, the sixteenth day after the Court of Appeals had overruled the State's application for rehearing. It was mailed in Montgomery on the preceding day, October 23, 1946.
The pertinent provisions of Supreme Court Rule 44 are as follows:
(Emphasis supplied)
We have heretofore held that the said rule is mandatory in so far as it requires that the application for certiorari be accompanied by a brief pointing out and arguing the point of decision sought to be revised and that the failure to comply therewith requires that the application for certiorari be stricken. Birmingham Waterworks Co. v. Edwards, 202 Ala. 503, 80 So. 791; Locklear v. State, 205 Ala. 236, 87 So. 712; Gulf, M. & O. Ry. v. Scott, Ala.Sup., 27 So.2d 152.
Counsel for Burch here contends that said Rule 44 requires that the brief actually be received by counsel for the opposite party within the fifteen days and that the rule is not complied with merely by placing a copy of the brief in the mail within the fifteen-day period. On the other hand, the State contends that the rule is complied with when it appears that the brief was placed in the mail within the period prescribed by the rule.
We are of the opinion that the State's application for writ of certiorari must be stricken for failure to comply with the aforesaid rule of this court. The mere mailing to opposing counsel of the copy of the brief in support of the application for the writ of certiorari within fifteen days of the date on which the Court of Appeals overruled the application for...
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Hurt v. State
...in the case and necessarily harmful and prejudicial. Burch v. State, 32 Ala.App. 529, 29 So.2d 422, petition for cert. stricken, 249 Ala. 72, 29 So.2d 425 (1947). Likewise, it is prejudicial error for the prosecutor, in redirect examination of a witness, to create the impression by insinuat......
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Cunningham v. State
...That is not true as to compliance with our former Rule 44 and present Rules 11, 39, and 44, Code 1940, Tit. 7 Appendix. In Burch v. State, 249 Ala. 72, 29 So.2d 425, this court held that old Rule 44 had not been complied with where brief supporting petition for certiorari to the Court of Ap......
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Renfroe v. State
...cert. granted 241 Ala. 383, 4 So.2d 186 (reversed on other grounds); Burch v. State, 32 Ala.App. 529, 29 So.2d 422, cert. stricken 249 Ala. 72, 29 So.2d 425; Stain v. State, The giving of a negative answer following the question to the appellant did not render such matter harmless. Dredd v.......
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Bailey v. State
...It comes nowhere close to the comment condemned in Burch v. State, 32 Ala.App. 529, 29 So.2d 422 (1946), cert. stricken, 249 Ala. 72, 29 So.2d 425 (1947). In that case, the Court of Appeals "It clearly appears that the principle insistence of error ... is predicated upon the ruling of the t......