
    (93 South. 548)
    CARAWAY v. STATE.
    (4 Div. 765.)
    (Supreme Court of Alabama.
    May 25, 1922.)
    Criminal law <&wkey; 1.133 — Rule providing that ap-pellee cannot apply for rehearing unless brief was filed in original hearing applies in crim-, inal cases.
    Rule 38 (198 Ala. xiii, 83 South, vi), providing that appellee cannot apply for a rehearing unless brief was filed with the clerk upon the original hearing within 15 days after submission of the cause, applies in criminal as in civil cases, but the rule need not be applied in any case in which the ends of justice may appear to require further consideration.
    Gardner, J., dissenting.
    &wkey;jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Certified Question from Court of Appeals.
    Tom Caraway was convicted in the circuit court of Dale county, and appealed to the Court of Appeals. That court reversed the judgment of conviction, and remanded the cause for a retrial. 93 South. 376. No brief was filed in behalf of the State on the original submission, but after reversal the Attorney General filed an application for rehearing, whereupon the Court of Appeals certifies to the Supreme Court the inquiry whether Supreme Court rule 38 (198 Ala. xiii, 83 South, vi) should be construed as concluding against the State in the premises.
    Question answered in the affirmative.
    Response to Inquiry Certified by the Court of Appeals.
    ■ The Court 'of Appeals, under Acts 1911, page 96, propounds to the Supreme Court .the following inquiry :
    “Rule 38 [198 Ala. xiii, 83 South, vi] provides, among other things, that: ‘No appellee can, as a matter of right, apply for a rehearing unless brief was filed with the clerk upon the original hearing within 15 days after submission of the cause containing a certificate that a copy of the same was served within said time upon counsel for appellant.’ This rule contains no limitation as to application, and in Ex parte Shirey [206 Ala. T67], 90 South. 75, was held to apply in criminal cases as against defendant.
    “Query: Does that part of rule 38 above quoted apply to the state in a criminal case?”
   PER CURIAM.

The court is of the opinion that rule 38 (198 Ala. xiii, 83 South, vi) obtains in criminal as in civil' cases; but the court notes that the rule provides in effect that it need not be applied in any case in which the ends of justice may appear to require further consideration.

All the Justices concur, except GARDNER, J., dissenting.

Let this opinion be certified to the Court of Appeals.  