Thomas v. State Court Opinion

    T*T
. ozl

)i*ro^rJl1020 Ala. 363 SOU't'ItDttN lult,oRTEta, 2d SHRIDS

AIa.Cr.App., i-|46 So.2d 4611. rcvcrsc<l Ala.,
346 So.2rl 4M (1976), aftcr rcm:rnrl, Ala.(jr.
App., 346 So.2d 465 (19?6), appcal aftr:r
remand, Ala.Cr.App., 346 So.2d 382, ccrt.
denicd, Ala., 346 So.2d 38li (1977); I,o1tc t,.

Statc, Ala.Cr.App., 345 So.2rl 1381 (19?S),
reverscd, Ala., 345 So.2d 13lJl-r, on rcmanrl,
Ala.Cr.App., 345 So.2d 1388 (1976), cmt. dis-
missed, Ala., 345 So.2d 1390 (197?), appcal
dismissed, Ala.Cr.App., 345 So.2d i390. In
order to deal with this problem and others
brought on by an antiquated appellate pro-
cedure, our Supreme Court adopted the ncw
Alabama Rulcs of Appellatc Procedurc.
Rule 11 workcd a complete change in the
mechanics of conrpletion anrl [r:rnsrnission
of a record on appcal. It has correctcd
many of thc problems encountcred in the
old appellate procedure such as the instant
delayed appeal.

A new trial is normally granted an appel-
lant when his conviction has been rcversed
and remanded. However, in the instant
case, the trial court, in making a proper
disposition of this case, should take into
consideration the fact that the appellant
has already served the sentence imposed.

REVERSED AND REMANDT]D.

All the Judges concur.

J., of robbcry and he appcaled. The Court
of Criminal Appeals, Bowen, J., hcld that:
(1) proof that defendant wqppser!_in
automobile which was entered by two rob-

viction of robbery, and (2) prosecution could
noT6EffiEldffr-dther opportu nity to su p-
ply evidence of guilt which it failed to
muster in first proceeding.

Reversed and rendered.

DeCarlo, J., dissented and filed opinion.

l. Criminal taw e-753.2(8)

In trial court's overruling of motion to
exclude State's evidence, only evidence be-
fore trial court at time motion was made
can be considered.

2. Criminal Law e1158(1)
Standard of review of trial court's

overruling motion to exclude State's evi-
dence is whether there existed lega! evi-
dence before jury, at time motion was
made, from which jury could by fair infer-
ence find defendant guilty.

3. Criminal Law e'115311;

On appeal from overruling motion to
cxclude State's evidence, court will not sub-
stitute itself for jury in determining proba-
tive force and weight of evidence, but will
only determine if legel evidence was
presented from which jury, by fair infer-
ence, could have founC defendant guilry
beyond a reasonable doubt.

4. Criminal Law e559, 562

Jury is under duty to draw whatever
permissible inferences it may from evi-
dence. including circumstantial evidence,
but mere speculation, conj:cture, or s(lrmise
l.hat accuserl is guilty of offense charged
rkrr:s not authoriz,c a convict ion.

l-r. Orinrintl l,tw e-1-169

l)cfentl:rnt should noL be convictud on

mcro suslricion or out of fear that hc might
havc committod crime.

Ben THOMAS, III
v.

STATE.

6 Div. 691.

Court of Criminal Appcals of Alabama.

0<:t. IJ, l9?U.

On lk:lrr:;rring O<r1.. lll, l1)71{.

Dcfendant was convictcrl in thc Circuit
Court, Jcfferson Oounty, Ohirrlcs Crowrlcr,

l)trz
c,

w- w\

*

bcrs, while creating suspicion of



TIIOII{AS ". S'tA'tE
Clte as, Ala.Cr.APP.,3(B So.zd l02o

Ala. 1021

6. Criminal t 6v o=308 fact in issue which follows as a natural

While reasonable infercnccs frorn evi- consequencc from known collateral effccts'

dence may furnish basis for proof lreyond

reasonable doubt, mcre possibility, suspi-

cion, or gucsswork, no matter horv strong,

will not overturn presumption of intlocencc'

deduction

not supposition or conjccturc.
See publicatiort Words and Phrases

for otlrer judicial constructions irnd

definitions.

g. criminal t sw 6549
Possibility that thing may occur is not

alone evidence, even circumstantially, that

thing did occur, in criminal case'

9. Robbery €=24.1(4)

Proof that defendant was present in

automobile which was entered by two rob-

bers, while creating suspicion of guilt, was

wholly insufficient in itself to support con-

viction of robberY.

13. Criminol Law e-552(3)

For circumstantial evidence to be suffi-

cient to justify conviction, circumstances

proved must not only be consistent with

hypothesis that defcndant is guilty but in-

consistent with hypothesis that he is inno-

ccnt antl inconsistent with cvcry othcr ra-

tional hypothesis except that of guilt'

14. Criminal Law 6552(3)
Circumstantial evidence which

nothing more than create suspicion

rlcfcnrlant w:ts guilty of criminal acl

insufficicnt basis for conviction'

15. Criminal Law e-552(l)
Facts are not proved by circumstances

mt:rely consistent with their existence, in

criminal case.

16. Criminal Lsw c-1133

On application for rehearing, refiling of

brief substantially identical to that' filed on

original submission warranted striking ap-

plication for rehearing.

Rogcr C. APPell of BrYan, Wiggins'

Quinn & Al4rell, Birmingham, for appcllant'

William J. Baxley, Atty. Gen' and Eddic

llarrlaway, Jr., Asst. Atty' Gen' for the

Sta[e, appellee.

B0WEN, Judge.

Ben Thomas, III, was convicted of rob-

bcry and sentcnced to ten ycars' imprison-

mcnt. On appcal he contends lhat the evi-

dence was insufficient to support his convic-

tion. We agree.

Viewing the evidcnce presented by the

prosecution in its most favorable light, Liv-

ingston v. Stale,44 Ala.App' 559, 216 So'2d

731 (1969), the s[atc provcd that Michacl

.l:u:kson lrttl ltontkl J'lvtns roblrcri thc ZipPy

M:rrt tt 2016 2lst SLrt:r'[, l')nslt:y, Al:r-

lrarna, on Novclttlrcr :J, 19?6' 'flrcsc twrr

men ran across the strcet into the parking

lot of thc Pike Iload Church and entered an

automobile where 'fhomas was sitting in

di,r )
that L
*** (

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li
rs

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10. Criminal 1a5, e lg9

Double jcoPanlY clause of Fifth
Amentlmcnt of Constitution of Unitctl

Statcs and C<lnstitulion of Alabama pro-

clude scconrl trial once revicwing c<turt h:ts

found evidencc insufficient to sustain jury's

ver<Iict of guilty. U.S.C.A.Const' Anrenrl' l-r;

Const.1901, $ 9.

ll. Criminal tr6y c_190

Prosecution could not be affor<lcd an-

other opportunity to supply cvidence of

guilt which it failed to muster in first pro-

ceeding in which evidence was wholly insuf-

ficient to support conviction. U'S'C'A'

Const. Amend. 5; Const.1901, S 9'

Opinion on Rehearing

#. I;rin,in,,; 1,;1v <:- trl-r2(l )

V (li."u,u*[:rrutirtl ,,virh'ttt'r' is ttot infr:rior

evirlcncc [1g/r.s evi,lcncc only if it alortg

with other6idence is susceptiblc of reason-

able infcrence pointing qncilutvoc{@
fendant's guilt an<l it is the inference ol

te
'tl

)n

ht



prifr

1022 Ala. 363 S(II;TIIERN REPORTER, 2d SERIDS

I

,d

I

ii,

the driver's seat. Sergcant Jcssic Jackson,
having been alerte<l by a silt,nt alarm, im-
mediately drove his police vehicle in front
of the parked automobile. He Lestificd that
the cngine <lf the blocked automobile was
not running but started as he tlrove in front
of it, stopped his automobile and opened his

door.

Sergeant Jackson tlrcw his scrvicc revolv-
er and ordered the thrce occupants out of
the car. Evans then stated that, "Wc ain't
did nothing". An automatic pistol and for-
ty-five dollars, thc approximate amount
taken in the robbery, were found on Evans

acquittal on lhc grounds that the state had

faiie,l tn p.oru iho*or' knn*leGiIo.
paitlcipation in the ro y. ThE--motion
fo-r a directed verdict of acrluittal served
the same purpose and function as a motion
to exclude the state's evidence and should
have been granted.

tl-31 In reviewing the action of the tri-
al court in overruling a molion to cxcludc
the evidence, only the evidet,r:e bcfore the

trial court at the time the motion was made

can lre considered. James v, State, 351

So.2d 693 (Ala.Cr.App.1977); LivittgsL<tn v.

State, MAla.App. 559, 216 So.2<l 731 (1969).

The standard of rcvieu, is rvhether there
exl3ts legal evlrlencc belorc thc Jury, a[ tne
time the motion was made, from which the
jury could by fair inference find the de-

fendant guilty. Stcwarl v. St.rte, 350 So.2d

?64 (Ala.Cr.App.19?7). In rtpplying this
standard, this court will not sullstitute itsclf
for the jury in tletermining thc probativc
forcc and weight of the evirlence, Toles v.

State,170 Ala. 99, 54 So. 511 (1911); Leach
v. Slate,2l Ala.App.423, 136 So. 493 (1931);

Martin v. State, 17 Ala.App. 73, 8l So. 851

(1919), but will only rlctcrmin.' if lcgal cvi-
tlence was prcsen[c<l frorn wlrit:h thc jury,
by fair infercncc could have found the de-

fendant guilty bcyonrl a retson:rble doullt.
Daniels v. Stata,343 So.2rl 56ti (Ala.Cr.App.

1977); Ilowell v. State,339 So.2d 138 (AIa.

Cr.App.1976).

tffil While a jury is under a duty tdl
draw whatever permissible inferences it I
may from the evidence, including circum- |
stantial evidence, mere speculation, conjec- |
ture, or surmise that the accused is guilty I
of the offensc charged does not authorize a I
convictir.rn. SyilD-FE!e.345 So.2d 325 t

(Ala.Cr.App.), ccrt. quashed, 3.15 So.2d 329

(A[a.1976); Colley v. State, 41 Ala.App. 275, ,
128 So.2d 525 (1961). A defendant should I
not be convictcd on mere suspicion or out of I
fear that he might have committed the I
crime. Harntge v. Statc,49 Ala.App. 5G3,

274 So.Zd 333 (1972). While reasonable in-
ferences from the evidence may furnish a

basis for proof beyond a reasonable doubt,
Royals v. State, 36 Ala.App. 11, 56 So.2d

363, cert. dcnied, 256 Ala. 390, 56 So.2d 368

(1952), -
work- no rnatter how st,rons. will not over-

turn the oresumotion of innocence. Sauls,.ffi(rsnt);
Riley v. State, 28 Ala.App. 389, 187 So.2417

(1939); Ilungan v. State,25 Ala.App. 28?,

145 So. 1?1 (1932); Guin v. Stare, 19 Ala

Ii
\*
It-

^Mp.),cert.de-
nietl, 346 So.2rl 478 tAla.1978); Hale v.

Statc, 45 Ala.App. 97, ?25 So.2d 787, cett
denied, ?34 Akt. 730, ?25 So.2d ?90 (1969);

Orr v. State. 32 Ala.App. 77,21 So.2d 5?4

(1945). It is a logical and reasonable deduc-

tion from the evidence and is not supposi-

tion or cr-rnjecturc. Guesswork is not a sul>

stituLc. Stambaugh v. Hayes,44 N.M. 44i|,

103 P.2d M0 (1940); Bolt v. Davis, ?0 N.M.
449,374 P.2d M8 (i962). A supposition is a

conjecture based on the possibility or proba-

bility that a thing couid have or may have

occurctl without proof that it did occur.

Lutisvilla & N. R. C<s. v. I{ann's Adm'r,Zll
Ky. rl99, l:J S.W.2d'2t7 Og2s} TlggEsilil-
itv that a thine mav occur is not alone

elidence, cven circumstantially, that the

t

inside his coat Jxlckcts. No- moncy or wcal)-

was undisputed thaTTffi-m-as rlj
ith this tes

counscl move<l for a directcd ver<lict of

the jury rnay accepf or reject or



TIIOMAS v. STATE
Cltc as, Ala.Cr.App.,36:| So.2d 1020

Ala. 1023

: (Ala.

,luty to
ruccs it
cirt:um-
tronjec-

is guiltY
htlrize a
.,Zd 325
o.2d 329

\pp. 275,

rt should
or out of
irted the
App. 563'
,nable in-
furnish a
lrle doubt,
. 56 So.2d

So.2d 368

, or g'uess-

r not over-
,ce. Sau,ls

25a (1941);

rtl? So. 24?

,.ApP. 287,

t,', 19 Ala'

a permissi-

iacts which
,r give such

Roberts v'

;r.), cert. de-

,r, Hale t''
kl ?87, cert.
r ?90 (1969);

ll So'2d 574

nirble deduc-

r,ct suPPosi-

is not a sub-
,i{ N.M.'143'
:rv'is, ?0 N.M'
i'r,()sition is a

ility or Proba-
,rr tnaY have

rt tlitl oct:ur'

'ls Adnt'r,221
'l'trc lxrssibil-
is not akrne

rlly, that the
'it:rtc, 280 Ala'

6g5, 19U So.2<l 261 (19,;?); Millcr-tlrent bag, antl thc conflicting statcmcnts of the

Lumber cc,. v. Douglas, 16?'Ala. 286, 52 So. tlefendant after his arrcst, childcrs v' state,

414(1910).338So.2d1058(Ala.Cr.App.1976);thesuspi-
The merc fact thaL a defentlant is sitting cious contluct of the dcfendant in slowly

in the tlrivcr's seat of an automobile into backing l'he automobile up in front of the

which a robber enters immecliately follow- store being robbed' the presence of a weap-

ingtherobbcryaffordsnolegalinferenceonunderthedriver'sseat'andthedefend-
that the defenclant is the "gct-away" driver ant's statement that the two robbers were

or a participant in the robllery' While such her brothers where the relationship was dc-

circumstances do raise a sgsPicion that the nied by the men' Johnson v' State' 57 Ala'

defendant might be inrolr!ffi-lf,e crime, App' 4?0' 32e So'2d toi.l:']:] 
"];"1"'T*

they alone afford no circumstantial evi- ant's conduct in mceting the robber in an

denceofinvolvementorparticipationbutalleybchindastoremilcsfromthesceneof
onry tend to support the possibilitv. *i,:iiJTIr"'[]J:-,*" ;:?:f"n""il-;

We have examincd a numl)er of rotrtrery which he fle. from thc scene of the crinre

:::;''":::'J:.il".11;XJ."':'J,"L;T'il: mav arrorrr a surricient inrerence or partici-

present to connect the defendant with the pation to support a conviction' Stinson v'

commission of the offense. In snrith v. state' 55 Ala'App' 629' 318 so'2d 325' cert'

state,57 Ara.App. 151, 15?, 326 So'2d 680, ffniii;?,:l*"ffi',.'f.:r"rtiff1$T,tl;
685, cert. deniecl,295 Ala. 4'4,326 So'2d 686 

that two men got inlo a Ford automobile
t",:o?,;,:' 

ffiil::'"i:llpu,u,t .in,,hu.,"1,. *:iJi:.''.$:il: JJ;J:'J,'ff.'ili,':;
would not make him a principal' Rail- 

"*uy 
i.o. the sce,e by the .-efendant may

for<) [Raifortl] v. State,59 Ala. 106' Stlt!' 
also authorize a conviction. CosL v. State,

t 30 Ala'App' 182' 2 So'2d 446 (1941)'
hi.s--joTrpanj.<ln.hiI,,Wt,ll9forc,--';;-;;.n."u."underreview,therewas
and aftcr thc commtssion of thc rtct, are t'g-l In the casc urld

ffi;il from which partici- no evitlcnce at the time the motion to ex-

pancymaybeinferred."cludewasmadewhichwouldjustifyorsup-
Circumstantial evidence mav affortl arrin- port an inference that Thqg'ry-pryt
-"---'-- - ' 9 lr]4f-ry+tgg.u'''l with the robbers ncar -

r.@E.ti.1pEUgJ', cost v' slatc' 30 
berv before the commissio!-s!-lhg-g4rng er

Al--A.pp. 182, 2 So.2tl 466 (1941), as whcre --{
the defendant-cha,ffeur had prior knowl- t

edge of the robbery as shown by his state- ry
ments to fhc police, Brov'n v. state, 39 tIi*t no consciousnc'';s of guilt by Thomas

Ala.App. 149,96 So.2d 19? (195?), and even upon his capture and arrest' The state

though he advised his companions against simply proved that Thomas was present in

commission. Bass y. state, bS Ala.App. s, an automobile which u'as entered by trvo

812 so.2d 5?6 (19?5). other circumstances robbers' Such evidence' while creating a

affording logical and legal inferenccs of suspici,n of guilt' is wholly insufficient t<r

participation by the driver of an automobile support a conviction' For this reason this

in a robbcry arc that some of the money tg tt t"'"'

taken in thc robbery was foun<l on the [ro,tt] The Double Jeopardy Clause.of

defen<lant, McKinnon v. slilta,349 So.2tl 8? thc Filth Amendnrcnt of the constitution

(Ala.cr.A1rp.), <:cr[. rlcnit,rl, 349 so.2rl 89 of thc [lnited statcs, and a]so the constitu-

(19??); t,hg lrrttsrrnt:t,pI t.lts rltlfgltrlitttt ttclrr ti6n of Al:r[:ttrtlt, llrt:clutlcs a sccr'rnd trill

thc st:e1c,rf l.lrc t,rirnt, lxr[ort: [lrc rolrlurry (]n(:(! lr rcvit:wing court has ftiull<l the cvi'

with twr., of the thrcc nrcn irlcnLificrl as thc dcnce insufficicnt Lo sustain th(j 
j"Jlt^.t".i:

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robbers, the tlcfcnrlant,s knowlerlgc that dict of guilty. The prosecution canrol >:

one man carrietl a shotgun in a br.wn paper affordeianoiher opportuaity to suppi-r' tte



'*: {FF-

1024 Ala.

evitlcncc whiclr il ftrilcrl to 'rrustt'r in th'
first proccc<ling. 'l'hcrcfore this cusc nrust
be reverscd anrl renriererl. Burks v. Unitu!
stares, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ert.
2d I (19?8).

RUVERST]I) AND ITF]NI)I.)IiI]D.

HARRIS, P. J., and TYSON anrl IIOOK-
OUT, JJ., concur.

DcCARLO, J., <lisscnts.

DcCARt O, Judgc, <lissenting.

This casc is lreing rcvcrserl :rn<l n:nrlcrcrl
on the basis that Lhcre w:rs not sufficient
evitlcncc to connecl tlris aplrcll:rnL with th('
robbcry.

I do not tgrce.

Thc evidcncc subrnillcd at trial showerl

that thc two who htrl just robbctl thc Ziplry
Mart, "jumlrcd into" thc autornobilc wht:rc
Thomas was seatcd bchrnrl thc "rvht:c1."

It showed that thc car was on thc Pike
Avenue Baptist Church parking lo[, backcd
int<.r a parking space and "facing" the
street.

At the time Sgt. Jackson rec,:ivc,l thc c:rll
concerning the alamr, he wits rvithin trvo
blocks of the Zippy Mart. He testified thal
he saw the trvo robbcrs run, and jurnp, intc,
the car where the appellant was scatetl
behind the steering wheel. Accorrling to
Jackson, at the vcry momcnt he llulled the
police car on the parking lot in front of the
vehiclc, occupied by Thomas, the car
"cranked u1l.

In my judgnrent, it was logical itntl rt:a-
sonable for the jury to deduce that Thomas
was the intentlcd driver of the "gct-away"
car. The rollbcrry occurred at 10:00 o'clocli
in the morning, antl the car occupied by
Thomas was parked within two lllocks of
the place that was robbed. At thc ntotnent
the two robbers entered thc car, occupiul
by Thornas, thc r:ar was "crankt'rl." Ilad
thc allpcllant rlrivcn the c:rr zt fcw fcct
from its p:rrkcrl lxrsil.ion, tto t;trt'sLiott cotrl,l
lrc raisrlrl llurI lr.. w:rs noL in truIlr, :rttrl itr
far:t, Lht: "gr:L-itw:tv tlrive r." 'l'hrr ottly rc;,
son:ilrlc anrl lorrit':tl (r(,nclusion tlt:tt c,rultl lrc

drawn from this scl of facts is that, '['honi:is

:!(;3 SO(iTluiRN liliP0la',l'Dla, 2d SIiltIES

was thc "gct-irw:ry" tlrivcr, and would have

currtpletcrl his purposc, had it not bcen for
an alert police officer.

It defies reason to infer that the appel-

lant was parkcrl at the Pike Avcnue Baptist
Ohurch for any othcr purllose. On thc con-

trary, the jury would have to have been

tot:rlly oblivious to reality to have conclud-

crl that appcllant rvas not involved. He

was ccrtainly not sc:itcd there in thc car

awaiting church scrviccs. Any other con-

clusion would unqucstion;rbly be the rcsult
of surmisc, speculati<ln and corjccturc.

Bascd on the foregoing reasons of fact, I
rcspcclf ully rlisscnt.

U2l Circumstantial evidence is not infe-
rior evidcnce but is evidencc only if it alonz

@ susceptible ola
rcasonable inference pointing unequivocally
to the dcfi:ndant's guilt. Sumeral v. State,

39 Ala.App. 638, 106 So.Zd 2?0 (1958). it is

the infcrence of a facL in issue which fo!-

lows as a natural consequence from known

collateral effccts. White v. State, %4 Ala.

265,314 So.2d 85?, cert. denied, 423 U.S.

951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).

circumstantial evidence to be

justify a jury in convicting
upon it, the
onlv be c<,rnsi

the defendant

incrinsistent with everv other rational hv;

<1,

ci

ct'

ci

pr

Ai

al
t1

I't

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ir,

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(1

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io
a

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s'
(r

I3OWllN, Judge.

All thc cvi<lence asg4*_!I9;rp4llg4-
,il"

was clrcumstantlal.

uothesis excerrt that of his suilt. Ex parte

Acree,63 4]_e.2341_l!39; Ott v. State,lil

t13l For
sufficient to

Al.;-. n,49 So. 810 (1909); Lloyd v. Srate,50
Ala.App. U6, ?32 So.2d 85 (1973). Circum-
:;tantial cvidcnce justifies :r conviction onl-v

when it is inconsistcnt rvith any reasonable

tlrt'rrry of innor:cnt:c. Itick<:tts v. Strttc, ll5
Alr. 42,22 Stt. 551 (llJ9?); 'l';utnar v. St:rle,

2f)t Alt. 70,227 So.Zd 8ii5 (1973). CircLrm-

sltnr:r)s, rro rtltttcr hou, strong, which mtlrc-

ly arousc :r suspicion of guilt will not serve

lhat
but inconsislent



_.._4r.J,1t{StP

i:r nt

IiON'l'O: v. S'l'A'l'li
( lto as, Ala.(lr./ g4r., ll{i3 So.Zd l02ir

as a l)arris frtr rronvir:tiort. l]ltu'ti v. SLiilc, lr2 profcssion and tltosc whurr it rcl):L'stnts

Ala.A1r1r. 528,21t,1 So.2i 777 (l{)74); I)cSi/- arr.: grcatly inLcrcstctl'-

vey v. Stat.e, 245 Ala. 1611, l(i So.2tl liJll "The office of an appeliatc briei is tc aid
(1944). Circunrstanecs mcrt:I1' consistent an appellate court to understand quickiy
with guilt or causing suslrit:ion thcrcof arc thc issues involved, and by points, propo-

insufficient to juslifl' u conviction of crintc. sitions anrl argument, supported rvhere

Jordan v. SLata, 22{) Ala. 4lli, 157 So. 4t35 l)ossiblc by citalion of authrtrity, prescnt
(1e34).

[4, l5] Hcre, thc circuntsLrtntill evi-
dence did nothirrg nlorc tharl crcttl.c iL suslli-

cion th:rt thc appclltnt n'irs grrill.y of it

crirninal act. It r.l':rs thcrclnrt: irn insuffi-
cicnt basis lor a crottvict.iott. I"itcts :trc not
provcd by circuntstanccs mert:ly trrrtsistcnL
with thcir cxistcn<r'. F'ugrt:t.y' +'. St.:ila, 22

Alt.A1r1r. Ui\,24ti,11.1 So. E1)2 (l{}27).

[6] On rclte;tritrg thc SLtt.c hrts sirnlrly
refilcd iLs original lrricf anrl ltrts noL spctri[i-

cally antl clearly calletl to this t:ourt's atten-
tion any alleged error in our originitl ol)in-

ion. Refiling a lrricf filcd on submission as

a brief supporting an application for
rehearing is not lrcrmittcti. DcGraaf u'.

State,34 AIa.App. 137, 144, iJI So'2d 130

(1e48).

"After an appellatc court has tlist:hargcd

its duty by full consider:rLiorl of thc qucs-

tions raised in a recrord, arrd has issucd its
opinion, thcn clcarly it is the <luty of an

applicant challenging thc corrcctness of
that opinion to lxrint out clcirrly antl intcl-
ligcntly thc crrors rvhiclt hc :tllcgcs inlcr:t
the opinion :rntl rlccision. 'l'hc only w:r5'

this can llc tlont: is of coursc in a ltrop,-rr
brief filed in sttlrport ol thtr alilrlication
forrehearing." 

* r , i

"\Yhile the alrlrcllate courts of this State
havc bocn inclinctl ttlwartl :t lilrt'ritl t:on-

struction of Rult:s 10 antl 38 in tlctcrmin-
ing the a(lc(luacy of bricfs, ycrt ts slateti
by the Sulrremc Court in Ogburn-Griffin
Grocary C<tnt1t;rtr1' v. OricnL lrrsurun<:a

Contpany, lttlJ Alrt. 218, zDl, 66 So. 41.i4,

435, 'we t:annot yrt:rmit thcnr (thc rulcs) to
lre ignorcrl or (intircly rlisrt:g;rrtk:rl, how-

evcr innoct:trtly, [or l]tcy u'crtl frantctl
anti arloptctl kr facilitatt: tltc busincss :trtrl

lre an aitl to lhc court in its prornpt :rntl

orderly rlispt-rsition, a result (in) which the

Alrt. iU25

to the court the questions in controver-
sy."
DcGraaf,34 Ala.App. at i44, 37 So.Zd at
136.

A motion to tlisnriss an application llor

rchearing on thc grountls thal a party in a

criminal casc has refiled on irpplicatioll for
reh<r:rrirrg a lrrief sultstanti:rlly identicei to

tlurt filcd on l.hc originrrl sulttrtission, rvltcre

riuch ftcts cxist, is well takcn aud duc to bc

grilnted.

'f hcrc[orc, the appe llant's motion to
strike the State's application for rehcaring
is grantcrl. Because the appcllant c:rnnot

be rctrietl, hc is duc to bc discharged frorn
custody.

OPINION EXTENDED; APPLICA-
TION FOR R!]HEARING DIS}'{ISSED.

HARRIS, P. J., and TYSON and BOOK-
OUT, JJ., concur.

DcCAIILO, J., adheres to dissent.

. Hazel KONTOS

v.

STATE.

6 Div. 695.

Court of Oriminal Allltcals of Alabama.

Oct. 3, 1978.

Itclu:uring Dcnicd Oct. ill, l97li.

l)cfcndant was convictcd by a jury in
the Circuit Court, Jefferson County, Wil-

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