Owens v. State , 291 Ala. 794 ( 1973 )

282 So. 2d 417 (1973)

In re Norman OWENS
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

SC 476.

Supreme Court of Alabama.

August 30, 1973.

William J. Baxley, Atty. Gen., Montgomery, and James G. Lee II, Sp. Asst. Atty. Gen., Tuscaloosa, for petitioner.

No brief for respondent, for appellee.

FAULKNER, Justice.

The State's petition for certiorari seeking our review of the decision of the Court of Criminal Appeals, 291 Ala. ___, 282 So. 2d 402, is denied, because it clearly fails to comply with Supreme Court Rule 39, which is the only method of review of the Courts of Appeals by certiorari.

As this court has so often pointed out, Rule 39 requires that one of the grounds therein contained be averred before this court can consider the petition.

Writ denied.

MERRILL and HARWOOD, JJ., concur.

MADDOX, J., with whom HEFLIN, C. J., joins, concurs specially.

MADDOX, Justice (concurring specially).

I concur that the writ should be denied. By concurring to deny the writ, I want to point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So. 2d 388 (1961). 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). I do not desire to be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).

HEFLIN, C. J., concurs.