Duke v. State

BLOOD WORTH, Justice (dissenting).

I agree with the opinions expressed by my brother Harwood in his dissent.

In view of the fact that I was the author of the court’s opinion in Hanvey v. Thompson, 286 Ala. 614, 243 So.2d 748 (alluded to in Mr. Justice Merrill’s majority opinion), I feel I should add this additional comment.

In Hanvey, our holding was that the refusal of the trial court to give a certain written charge requested by the defendant was not reversible error. We said the charge was misleading and properly refused. We reversed the Court of Civil Appeals which had held that it was reversible error to refuse the charge. That portion of the Hanvey opinion quoted in the majority opinion simply reaffirms this court’s historical position which is that we will continue to preserve our constitutional right “to prescribe the mode and manner in which we will exercise the power to issue writs of certiorari and any other remedial writs which we deem necessary” to superintend the Courts of Appeals. [Emphasis supplied]

I do not consider that there is any inconsistency with, or conflict between, the opinions expressed, or the holding reached, in Hanvey and the opinions expressed by Mr. Justice Harwood.

As Mr. Justice Harwood’s dissenting opinion suggests, I think the proper course which we should pursue (if we think on our review that either of our courts of appeals has failed to treat a constitutional question raised) is to write an opinion treating such issue ourselves.

I most respectfully dissent.