Beall v. State

• Decision Date: 27 July 1893
• Citation: 13 So. 783,99 Ala. 234
• Parties: BEALL v. STATE. [*]
• Court: Alabama Supreme Court

13 So. 783

99 Ala. 234

BEALL v. STATE. ^[*]

Supreme Court of Alabama

July 27, 1893

Appeal from circuit court, Calhoun county; Le Roy E. Box, Judge.

Frank Beall was convicted of defamation, and appeals. A motion to strike from the record the bill of exceptions is granted, and the judgment is affirmed.

John H Caldwell, for appellant.

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was convicted of the offense of defamation. There is a motion to strike from the record the bill of exceptions because not signed within time. Sixty days were agreed upon in writing, as the time within which the bill of exceptions might be signed. This agreement bears date May 10, 1892. The bill of exceptions has two indorsements signed by the judge who presided at the trial. The first is, "Received by me through mail at Ashville July 9th, 1892." The second is, "Bill returned to defdts. counsel at his request, and afterwards, to wit, Aug. 18th, '92, again sent to me through the mail." The bill of exceptions bears date November 3, 1892. It is evident the bill bears date long after the time had expired within which it should have been signed. The statute fixes the time within which a bill of exceptions must be signed, and regulates the manner in which the time may be extended. Unless the statute is complied with, and the bill of exceptions is signed as therein provided, we cannot consider it, on appeal in this court. See act of February 22, 1887, p. 126, bottom of page 610 of the Code; Rosson v. State, 92 Ala. 76, 9 South. Rep. 357; Powell v. Sturdevant, 85 Ala. 243, 4 South. Rep. 718. It is manifest that the judge had no authority, in the present case, to sign the bill of exceptions, at the time it was signed. There had been no order or agreement made by which the time had been extended beyond the 60 days agreed upon.

Having failed to sign the bill within the 60 days, if the appellant was free from fault, he should have proceeded to establish the bill of exceptions in this court, as provided in the statute. The motion to strike the bill of exceptions must prevail, and this order leaves the appellant without an exception, and we are powerless to revise the ruling of the court in its refusal to charge the jury as requested by the defendant. Under the circumstances, probably, it is best to construe the statute under which the defendant was prosecuted. Section 3773 of the Criminal Code, under which the indictment was prosecuted, declares...