Cunningham v. State

• Decision Date: 19 May 1960
• Docket Number: 1 Div. 791
• Citation: Cunningham v. State, 270 Ala. 731, 121 So.2d 890 (Ala. 1960)
• Parties: Ernest L. CUNNINGHAM v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 890

121 So.2d 890

270 Ala. 731

Ernest L. CUNNINGHAM v. STATE of Alabama.

1 Div. 791.

Supreme Court of Alabama.

May 19, 1960.

Rehearing Denied July 14, 1960.

Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, for petitioner.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., opposed.

COLEMAN, Justice.

Defendant was convicted of manslaughter and appealed to the Court of Appeals where the record was stricken and the appeal dismissed because the record was filed in that court '* * * some four months and twenty days after the date it should have been filed.' No application for extension of time for filing was made either to the trial court or to the Court of Appeals.

Defendant's application for rehearing in the Court of Appeals was overruled August 19, 1958. Within fifteen days thereafter, on September 1, 1958, defendant filed in the Supreme Court his petition for certiorari to review the judgment of the Court of Appeals. Brief in support of the petition was also filed September 1, 1958.

On the petition for certiorari appears a certificate of counsel that '* * * we have mailed, postage prepaid, properly addressed, a copy of the foregoing Petition * * *' to the attorney general, '* * * This 30 day of Aug. 1958.' The brief also bears a certificate which states that counsel for defendant has mailed a copy of the brief in support of the petition for certiorari, postage prepaid, to the attorney general '* * * on this 30 day of August, 1958.'

On September 16, 1958, the attorney general filed in this court a motion to strike the petition for certiorari. The motion to strike recites in pertinent part as follows:

'4. State of Alabama avers that the Office of the Attorney General did not receive a copy of the brief of the petitioner-appellant in support of his petition for writ of certiorari until the morning of Friday, September 12, 1958, and further that said copy of the brief of petitioner-appellant so received was not mailed to the Office of the Attorney General until September 11, 1958, from the city of Birmingham, Alabama, which date of mailing is more than fifteen days from the date of the overruling in this cause of petitioner-appellant's application for rehearing in the Court of Appeals on August 19, 1958. In support of this allegation, the State of Alabama attaches hereto and makes a part hereof affidavits of Dorothy Hall and Bernard F. Sykes, together with an exhibit attached to the latter affidavit.

'5. The State of Alabama further avers that the Office of the Attorney General has not received, as of this date, a copy of the petition for writ of certiorari.

'6. The State of Alabama avers that neither a copy of the petition for writ of certiorari nor a copy of the brief in support thereof was mailed to the Office of the Attorney General within fifteen days from August 19, 1958, the date upon which application for rehearing was overruled in said Court of Appeals and that said petition for writ of certiorari to the Court of Appeals has not been filed in accordance with the rules of this Honorable Court and particularly, Rules 11, 39 and 44, and that said petition for writ of certiorari should be stricken or dismissed by this Honorable Court.'

The affidavits which accompany the motion to strike support the allegations of the motion. The exhibit to affidavit of Bernard F. Sykes is an envelope. The name and address of an attorney are printed on the upper left-hand corner of the envelope. The name of one of the attorneys on the brief and the address on the brief are the same as the name and address printed on the upper left-hand corner of the envelope. The envelope is addressed to the attorney general and bears the metered postmark of: 'Birmingham, Ala. Sep 11 '58.'

The affidavit of Dorothy Hall states that between 8:20 A.M. and 8:30 A.M. on September 12, 1958, in the course of her employment in the office of the attorney general, she opened the mail addressed to that office that on said date a copy of the brief in support of the petition for certiorari in the instant case was received in said office in an envelope; and that after opening the envelope she threw it, along with other envelopes, into a wastebasket next to her desk. The affidavit further recites:

'* * * I am informed and believe and upon such information and belief state as a fact that an envelope with a return address thereon 'Law Offices, Arthur D. Shores, 1630 Fourth Avenue, No., Birmingham, Alabama,' addressed to 'Hon. John Patterson, Attorney General, State of Alabama, Montgomery, Alabama,' and post-marked 'Birmingham, Ala., Sep 11 '58,' was found by Bernard F. Sykes about 9:30 on the same morning I am referring to in the said wastepaper basket, along with other envelopes which had contained the mail to the Attorney General's Office that morning and that said envelope with said return address thereon is the only one which was received on the morning of Friday, September 12, 1958 from the law offices of Arthur D. Shores.

'I know that the above referred to brief and argument was received on the morning of Friday, September 12, 1958, in the Office of the Attorney General and according to my best information and belief said brief and argument was contained in said above described envelope postmarked September 11, 1958, Birmingham, Alabama.'

The affidavit of Bernard F. Sykes states that he is chief of the criminal division of the attorney general's office and recites that:

'On the morning of Friday, September 12, 1958, at approximately 9:30 A. M., I found a copy of a brief and argument styled Ex parte Ernest L. Cunningham, Ernest L. Cunningham, Appellant v. State of Alabama, Appellee, entitled Appellant's Brief and Argument in Support of Petition for Writ of Certiorari, containing a certificate purportedly signed by Arthur D. Shores, Attorney for Appellant, that a copy of said brief had been mailed to the Attorney General of Alabama on the 30th day of August, 1958. This carbon copy of the brief and argument was found on my desk, endorsed in the handwriting of my secretary, Mrs. Frances Walter, 'Rec'd. 9-12-58--late.' This is the same brief and argument referred to and described in an affidavit made by Miss Dorothy Hall under date of September 12, 1958.

'After observing the said brief and inspecting the certificate of service thereon, I determined that the application for rehearing in the Court of Appeals in said cause was overruled on August 19, 1958 and that the fifteenth day thereafter, the time for serving a copy of the brief in support of a petition for writ of certiorari in said cause was the 3rd day of September, 1958.

'In order to verify the date upon which the Office of the Attorney General received the brief of petitioner, I searched each envelope in a certain wastepaper basket near the desk occupied by Miss Hall at the time that he had opened the mail on the morning of Friday, September 12, 1958. I found several envelopes, one of which was an envelope addressed to 'Hon. John Patterson, Attorney General, State of Alabama, Montgomery, Alabama,' with the return address thereon 'Law Offices, Arthur D. Shores, 1630 Fourth Avenue, No., Birmingham, Alabama, which envelope was postmarked 'Birmingham, Ala. Sep 11 '58.' The said envelope is attached to this affidavit and marked for identification Exhibit A.

'This office has not heretofore received a brief in the case of Ex parte Ernest L. Cunningham, Ernest L. Cunningham, Appellant, v. State of Alabama Appellee, in the Supreme Court on petition for certiorari to the Court of Appeals, and the brief received on September 12, 1958 is the only brief that this office has received in connection with said certiorari proceedings.'

The affidavits and envelope compel us to conclude that the copy of brief sent to the attorney general was not mailed until September 11, 1958. Defendant has not replied to or controverted the motion to strike.

The rule is clearly established that for consideration of a petition for certiorari to the Court of Appeals by the Supreme Court, one prerequisite is that the adverse party or his counsel shall be served with a copy of the brief of petitioner within fifteen days after action by the Court of Appeals on application for rehearing. Supreme Court Rules 11, 39, 44; Code 1940, Title 7, Appendix, Cum. Pocket Parts; 261 Ala. XIX et seq.; Bruner v. State, 265 Ala. 357, 91 So.2d 224; Gambrell v. Bridges, 266 Ala. 302, 96 So.2d 182; Golden v. State, 267 Ala. 456, 103 So.2d 62; Adkins v. State, 268 Ala. 548, 109 So.2d 749; Bozeman v. State, 269 Ala. 610, ...