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:
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;
The affidavit of Bernard F. Sykes states that he is chief of the criminal division of the attorney general's office and recites that:
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, 114 So.2d 914; Thorpe v. State, Ala., 119 So.2d 222. In the instant case, application for rehearing was overruled by the Court of Appeals on August 19, 1958. Fifteen days after that day expired at midnight September 3, 1958. We are compelled to conclude that copy of brief in support of the petition for certiorari was mailed eight days late and was not served on the attorney general within the required time.
In Golden v. State, supra, the requirement as to time for mailing copy of brief to opposing counsel on petition for certiorari to the Court of Appeals was fully considered and authorities cited. In the Golden case, within the prescribed time, the attorney general had filed in this court a petition for certiorari to the Court of Appeals and supporting brief, but had failed to mail a copy of the brief to opposing counsel within fifteen days after the Court of Appeals had overruled application for rehearing. In that case, for that reason, we said:
"* * * we have no alternative but to grant Golden's motion to strike the State's petition for certiorari and brief filed in support thereof. (Citations omitted.)" 267 Ala. 456, 457, 103 So.2d 62, 63.
Likewise, in the instant case we have no alternative and the motion to strike must be granted.
On Application for Rehearing.
On application for rehearing, petitioner cites Clark v. State, 239 Ala. 10, 193 So. 320, and similar cases which state that the former statute relating to striking bills of exception because of delay in presenting or signing same did not rest in the Attorney General the exclusive right to decide, by moving to strike, that denial of constitutional rights of defendants in criminal cases may not be reviewed, and, in ruling upon such motion, this court would examine the bill of exceptions to see if any constitutional right had been denied.
In Patterson v. Alabama, 294 U.S. 600, 605, 55 S.Ct. 575, 577, 79 L.Ed. 1082, the late Mr. Chief Justice Hughes wrote concerning our former statute, § 6434, Code 1923, as follows:
It thus appears that under § 6434, Code 1923, this court had authority to examine a bill of exceptions, although not timely presented or signed, because timely presentation and signing were not jurisdictional. 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 Appeals had not been served on opposing counsel within fifteen days as provided by the rule, although such brief had been mailed within fifteen days. Present Rule 39 requires such brief to accompany the petition for certiorari which must be filed within fifteen days as specified in the rule. Rule 11 requires that such brief shall be served on the adversary by delivery or mailing, and Rule 44 specifies how service personally or by mail shall be made. In Oliver v. State, 256 Ala. 295, 54 So.2d 618, with respect to old Rule 44, this court said:
In the cases cited on original deliverance, this court uniformly held that failure to serve brief on the adversary in time was a failure to comply with present Rules 11, 39, and 44, and that compliance with those rules as to timely service of brief is a prerequisite for consideration of petition for certiorari to the Court of Appeals. Compliance with those rules is a prerequisite in the instant case and because of petitioner's failure to comply we are without jurisdiction to entertain the instant petition.
SIMPSON, GOODWYN and MERRILL, JJ., concur.