On Rehearing.

The Attorney General in his brief filed on rehearing seems to have entirely misconceived the import of charge 3. The charge does not undertake to define the defense of alibi, which in law is a traverse of the material averments in the indictment that the defendant did or participated in the particular act charged, and is comprehended in the general plea of “Not guilty.” Albritton v. State, 94 Ala. 76, 10 South. 426. But the charge is upon the burden of proof, which in a criminal ease never changes from the state, to establish the guilt of the defendant, from the evidence, beyond a reasonable doubt.

Rule 38 of the Supreme Court as amended (198 Ala. xiii, 83 South, vi) has been held to apply in criminal cases (Ex parte Shirey, 206 Ala. 167, 90 South. 75)..

That rule provides:

“No appellee can, as matter of right, apply for a rehearing unless brief was filed with the clerk upon the original hearing within fifteen days after submission of the cause containing a certificate that a copy of same was served within said time upon counsel for appellant.”

. This, of course, is a good and reasonable rule for the. protection both of the courts and the opposite party. In this ease the rule was not complied with, and for that reason the application for rehearing is dismissed.

Application dismissed.

*549 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. No brief was filed in behalf of the State o'n 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 [19S 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. 167], 90 South. 75, was held to apply in criminal eases 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.

Let this opinion be certified to the Court of Appeals.

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.