Cobb v. Owens

• Decision Date: 04 April 1907
• Citation: 150 Ala. 410,43 So. 826
• Parties: COBB v. OWENS.
• Court: Alabama Supreme Court

43 So. 826

150 Ala. 410

COBB v. OWENS.

Supreme Court of Alabama

April 4, 1907

Rehearing Denied May 6, 1907.

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by Amazonia Cobb, administratrix, against W. T. Owens. Judgment for defendant, and plaintiff appeals. Reversed rendered, and remanded.

This was an action by Mrs. Amazonia Cobb, administratrix of the estate of Thomas Cobb, deceased, against W. T. Owens, for unlawfully and with force of arms cutting and mortally wounding plaintiff's intestate. The facts on which the original bill of exceptions was stricken, and the bill of exceptions on motion for new trial was considered sufficiently appear in the opinion. The charge on which the cause is reversed is set out in the opinion. Various other charges were requested and given for the defendant, not necessary to be here set out. Exception was reserved to the admission of certain testimony given by the defendant, which is set out in the opinion. The plaintiff also attempted to introduce certain statements made by decedent and certain directions given by him to his son, Raymond Cobb. There was verdict for defendant, and plaintiff appeals.

James T. Green and Knox, Acker & Blackmon, for appellant.

Matthews & Matthews, J. T. Martin, and Blackwell & Agee, for appellee.

DOWDELL J.

The bill of exceptions in this case was not signed until after the expiration of 30 days from the date of the trial. No order for extension of time for the signing of the bill was made by the court within the 30 days of the day of the trial. The bill of exceptions cannot, therefore, be looked to or considered for the purpose of reviewing the rulings of the court on the admission and rejection of evidence and the giving and refusal of charges on the trial, here assigned as errors on the record. Acts 1896-97, p. 332.

A motion was made in the court below for a new trial within 30 days of the date of the trial. This motion was heard and overruled by the court, and in entering up judgment overruling the motion the court made an order granting the plaintiff 30 days for a bill of exceptions. Within this time the court made an order extending the time for bill of exceptions 10 days from the expiration of the first order. In computing the time of the second extension, the day of expiration of the first order of extension must be excluded and in so doing the bill of exceptions in the present case was signed within the time of the second order of extension. It follows, therefore, that the bill of exceptions may be looked to and considered for the purpose of reviewing the action of the trial court in overruling the motion for a new trial, which is assigned as error.

The motion for a new trial was based on the alleged errors of the trial court in the admission and rejection of evidence on the trial, to which exceptions to the rulings of the court were at the time reserved, and to the giving of the several written charges requested by the defendant in writing. Among the written charges given by the court at the instance of the defendant was the following: "The court charges the jury that it is a presumption of law that Owens did not kill Cobb unlawfully." The presumption of innocence of a defendant obtains in a civil action, as well as in a criminal prosec...