Opinion
6 Div. 36.
January 30, 1964. Rehearing Denied April 16, 1964.
Robt. V. Wooldridge, Jr., Tuscaloosa, for petitioner.
Richmond M. Flowers, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., opposed.
Edgar Lowell Hardin was convicted of embezzlement in the Circuit Court of Tuscaloosa County. He appealed to the Court of Appeals on the record proper without a transcript of the evidence. The Court of Appeals affirmed the judgment of conviction without an opinion. Hardin filed application for rehearing in the Court of Appeals, which application was not accompanied by a brief as is required by Supreme Court Rule 34. Because of the absence of such a brief, the State filed a motion to strike the application for rehearing. The Court of Appeals granted the State's motion to strike.
Thereafter, Hardin filed his petition for writ of certiorari in this court. It was not accompanied by a brief as required by Supreme Court Rule 39.
The State has filed a motion to strike the petition for writ of certiorari. That motion is granted for the following reasons.
The requirement of Supreme Court Rule 34 was held as applicable to criminal as well as civil cases in Caraway v. State, 207 Ala. 588, 93 So. 548. And whether or not this rule should be enforced in any particular case was held by this court in Hall v. State, 222 Ala. 26, 130 So. 533, to be a matter addressed to the irrevisable discretion of the Court of Appeals. That discretion was here exercised and the application for rehearing stricken. Where the application for rehearing is stricken by the Court of Appeals this court does not review. Wilkerson v. State, 246 Ala. 542, 21 So.2d 622.
The Court of Appeals rendered no opinion in this case. Accordingly, there is nothing for this court to review. Smith v. State, 241 Ala. 99, 1 So.2d 313; Sartain v. State, 263 Ala. 395, 82 So.2d 347.
Moreover, the petition for certiorari which was filed in this court on October 21, 1963, was not accompanied by brief, as is required by Revised Supreme Court Rule 39. Krasner v. Reed, 249 Ala. 240, 30 So.2d 734; Oliver v. State, 256 Ala. 295, 54 So.2d 618; Cunningham v. State, 270 Ala. 731, 121 So.2d 890.
Petition stricken.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.