Appellant has filed a motion to dismiss this application for rehearing on the grounds that the paper, labeled a Brief and Argument, is in no sense a brief, and therefore the application is not accompanied by a brief as required by Supreme Court Rule 38, Code 1940, Tit. 7 Appendix.
For the purposes of this opinion the pertinent portions of Rule 38 are as follows:
"All applications for rehearing must be filed with the Clerk of the court, accompanied by brief for the applicant * * *. No application shall be received or filed which is not presented in strict compliance with this rule, * * *."
The entire paper labeled a "Brief and Argument" filed in this cause by the applicant is as follows:
"Brief and Argument "The Court of Appeals has reversed and rendered the judgment of the trial court in this case, for the reason that appellant, Clyde De Graaf, charged with robbery, was found guilty of assault with intent to rob and not robbery.
"True, the only defense presented by appellant was that he was not a party or conspirator to commit the crime of robbery. It is also true that the evidence presented by the State shows that the crime of robbery was completed. It is insisted, however, that to hold that the jury's verdict is a compromise verdict not supported by the evidence, and to discharge the defendant results in a miscarriage of justice.
"Whatever the rule of law is or should be under this state of evidence, the result — discharge of a defendant found guilty by a jury — cannot be correct.
"On this rehearing we insist on each and every point presented by the State in its original brief.
"We also request the Court of Appeals to state as a fact in its opinion that the trial judge, in his oral charge, instructed the jury both on the crime of robbery and on the crime of assault with intent to rob (R. 78). We make this request in order that there will be no doubt as to whether or not the Supreme Court may consider this fact if certiorari is applied for.
"We also request that it be noted in the opinion that defense counsel made no objection to this instruction (R. 78).
"It is submitted that this cause should be affirmed."
Under the provisions of Section 389, Title 15, Code of Alabama 1940, no assignment of errors is necessary in a criminal case, and it is the duty of the appellate courts of this state to consider all questions apparent on the record. Under this section it is unnecessary even to file a brief in a criminal case. Hymes v. State, 209 Ala. 91, 95 So. 383; Bertalsen v. State, 20 Ala. App. 539, 103 So. 480. *Page 144
If Supreme Court Rule 38 is to have any field of operation in criminal cases however, the conclusion is necessary that Section 389, supra, has application to the consideration of criminal cases on original submissions, and not to motions for rehearings in such cases. Indeed, our Supreme Court has specifically held that Rule 38 obtains in criminal as in civil cases. Caraway v. State, 207 Ala. 588, 93 So. 548.
After an appellate court has discharged its duty by full consideration of the questions raised in a record, and has issued its opinion, then clearly it is the duty of an applicant challenging the correctness of that opinion to point out clearly and intelligently the errors which he alleges infect the opinion and decision. The only way this can be done is of course in a proper brief filed in support of the application for rehearing.
While we do not think it entirely applicable, because of the limited scope of an application for a rehearing as distinquished from the broad sweep of an original submission, yet Supreme Court Rule 10, pertaining to the contents of an appellant's brief furnishes some basic criteria for determining the adequacy of the alleged brief filed in this proceeding. Among other things it is set forth in Rule 10 that an appellant's brief "shall contain, under a separate heading of each error relied on, separately numbered propositions or points * * * together with the authorities relied on in support of them and in citing cases, the names of parties must be given, with the book and page where reported."
The alleged brief filed by the applicant is entirely defective in formal construction. Regardless, an analysis of this paper discloses that the only allegation of error it asserted is that the conclusion reached by this court that the defendant be discharged results in a miscarriage of justice, and cannot be correct.
After careful consideration and study we have of course reached a contrary conclusion. A mere statement of opinion by counsel, unsupported by any citation of authority, that our opinion is incorrect, serves no useful purpose in so far as enlightening this court is concerned. Any other view by counsel for an applicant would be surprising, and disastrous to his application.
It is further noted that in the alleged brief counsel sets forth that: "On this rehearing we insist on each and every point presented by the State in its original brief."
Having already carefully considered each and every point presented by the State in its original brief, this attempt to refile such brief in no way facilitates the work of this court. In a brief on rehearing the alleged errors in an opinion should be specifically and clearly called to the court's attention. Refiling in the Supreme Court of briefs filed on submission, and in support of application for rehearing in this court, is not permitted. Ex parte Locklear, 205 Ala. 236, 87 So. 712. The same principle is applicable to counsel's efforts in this instance in his insistence on reconsideration of each and every point presented in his original brief.
While the appellate courts of this State have been inclined toward a liberal construction of Rules 10 and 38 in determining the adequacy of briefs, yet as stated by the Supreme Court in Ogburn-Griffin Grocery Company v. Orient Insurance Company, 188 Ala. 218, 224, 66 So. 434, 435, "we cannot permit them [the rules] to be ignored or entirely disregarded, however innocently, for they were framed and adopted to facilitate the business and be an aid to the court in its prompt and orderly disposition, a result which the profession and those whom it represents are greatly interested."
The office of an appellate brief is to aid an appellate court to understand quickly the issues involved, and by points, propositions and argument, supported where possible by citation of authority, present to the court the questions in controversy. Measured by this test, it is apparent that the paper filed in support of this application, under a most liberal construction, cannot be characterized as a brief.
It is therefore the conclusion of this. entire court sitting en banc, that the motion *Page 145 to dismiss this application for rehearing on the grounds asserted is well taken, and dismissal is so ordered.
Motion to dismiss application for rehearing because of noncompliance with Supreme Court Rule 38 granted.