Clark v. State, 4 Div. 61.

• Decision Date: 18 January 1940
• Docket Number: 4 Div. 61.
• Parties: CLARK v. STATE.
• Court: Alabama Supreme Court

193 So. 320

239 Ala. 10

CLARK v. STATE.

4 Div. 61.

Supreme Court of Alabama

January 18, 1940

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Henry Clark was convicted of murder in the first degree, and he appeals, and the Attorney General moves to strike the bill of exceptions.

Motion overruled.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the motion.

Sollie & Sollie & Bennett, of Ozark, for appellant, opposed to the motion.

THOMAS Justice.

The indictment, verdict of guilty and judgment thereon were for murder in the first degree. The penalty was fixed for life in the penitentiary.

The submission was on motion to strike the bill of exceptions and on merits.

The State's counsel moves to strike the bill of exceptions and invokes the decision of this court on said motion to strike for reasons stated. The grounds are:

"1. It affirmatively appears from the record that no compliance has been had with Section 6433 of the Code of Alabama 1923.

"2. It does not appear from the record that the bill of exceptions was approved and signed by the Trial Judge within sixty days from the date of presentation to such Trial Judge.

"3. It affirmatively appears from the record that Section 6433 of the Code of Alabama, 1923, has not been complied with with reference to the approving and signing of the bill of exceptions within sixty days from the date of presentation to the Trial Judge."

This question requires a reconsideration of §§ 6433 and 6434 of the Code of 1923, which were construed in Ex parte Hill, 205 Ala. 631, 89 So. 58; Baker v. Central of Georgia R. Co., 165 Ala. 466, 468, 51 So. 796; Beatty v. McMillan, 226 Ala. 405, 147 So. 180; Patterson v. State, 229 Ala. 270, 156 So. 567; Weems v. State, 236 Ala. 261, 182 So. 3; Patterson v. State, 234 Ala. 342, 175 So. 371; Patterson v. State of Alabama, 302 U.S. 733, 58 S.Ct. 121, 82 L.Ed. 567.

The rule announced generally under the statute was recently reconsidered by a divided court in Jones v. State, 237 Ala. 614, 188 So. 384, and the holding was:

"Where bill of exceptions was not filed and presented to trial judge or clerk of court within 90 days from date of judgment nor within 90 days from date of order denying motion for new trial, and bill of exceptions disclosed no violation of defendant's constitutional rights, bill of exceptions was stricken by reviewing court upon motion of Attorney General. Code 1923, §§ 6433, 6434.

"Statute authorizing striking of bill of exceptions not filed and presented to trial judge or clerk of court within prescribed period is not mandatory upon appellate court, and court will exercise its discretion upon consideration of whether defendant's constitutional rights have been secured to him. Code 1923, § 6434."

In the above case, Thomas, Justice, limited his concurrence to the result of striking the bill of exceptions.

To the same effect was the decision in Rutherford v. State, 237 Ala. 613, 188 So. 385, where, speaking through Mr. Justice Foster, a majority of the court held:

"Bill of exceptions in criminal case must be taken and signed by presiding judge as in civil case. Code 1923, § 3234.

"The statute authorizing striking of bill of exceptions for delay in presenting or signing does not vest in Attorney General the exclusive right to decide, by moving to strike bill of exceptions on that ground, that denial of constitutional rights of defendant in criminal case may not be reviewed, and, in ruling upon such motion, court will examine bill of exceptions, where set out in record on appeal, to see if any constitutional right of defendant was denied him. Code 1923, §§ 6433, 6434."

In the latter case, Justice Gardner, Justice Bouldin and Chief Justice Anderson concurred in the holding.

We, therefore, take as settled the construction of the statutes in question. Will the motion be denied when referred to the last construction by this court with exceptions to see if any constitutional rights of a defendant were denied, and with deference to the decision of the Supreme Court of the United States in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 Am.L.R. 527?

We have examined the record and find no constitutional question presented or duly proven for decision in this case for the purposes of motion to strike, and this case is not within the exceptions to the decisions and rules of the statute hereinbefore considered.

The motion to strike the bill of exceptions is predicated upon the following dates, viz.: On January 3, 1939, motion for new trial...