
    Ex parte Austin CASON. (Re Austin Cason v. State of Alabama).
    86-1173.
    Supreme Court of Alabama.
    Sept. 18, 1987.
    Arthur Parker, Birmingham, for petitioner.
    Don Siegelman, Atty. Gen., for respondent.
   MADDOX, Justice.

Writ denied. Because we find no error to reverse with respect to the trial court’s failure to instruct the jury on the lesser included offense of criminally negligent homicide, this writ is denied. A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916).

As we understand the opinion of the Court of Criminal Appeals, 515 So.2d 721, that court applied the “harmless error” rule to the trial court’s failure to instruct the jury on criminally negligent homicide, based upon all the facts and circumstances of this case. In denying certiorari, we should not be understood as agreeing that the trial court committed error in refusing the requested charge on the lesser included offense, but that the accused was not entitled to have the jury so charged because of the particular facts and circumstances presented here. Because the evidence here was insufficient to entitle the petitioner to have the jury so charged, the failure of the trial court to give the requested charge was not error under the particular facts and circumstances of this case.

WRIT DENIED.

JONES, SHORES, BEATTY and HOUSTON, JJ., concur.  