Ettore v. State

• Decision Date: 17 December 1925
• Docket Number: 1 Div. 356
• Citation: 106 So. 508,214 Ala. 99
• Parties: ETTORE v. STATE.
• Court: Alabama Supreme Court

106 So. 508

214 Ala. 99

ETTORE v. STATE.

1 Div. 356

Supreme Court of Alabama

December 17, 1925

Appeal from Circuit Court, Mobile County; J.W. Goldsby, Judge.

Liverani Ettore was convicted of murder in the second degree, and he appeals. Affirmed.

R.H McConnell, of Mobile, and C.P. McIntyre, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and Robert G. Tate, Asst. Atty. Gen for the State.

GARDNER J.

Appellant has prosecuted this appeal from a judgment of conviction of murder in the second degree. It is not insisted that any error appears in the record proper, and our examination discloses none. The questions urged upon the court for a reversal are presented only by bill of exceptions.

The state moves to strike the bill of exceptions upon the ground the same was not signed by the presiding judge within 60 days after its presentation. That it was not signed within the time prescribed by statute (section 6434, Code of 1923) is conceded; but it is insisted that by the concluding clause of the statute the time for having the bill of exceptions signed may be extended by consent or waiver, which is sought to be shown by affidavit of counsel for appellant. This affidavit is to the effect that, after the expiration of the 60 days required for signing the bill of exceptions, the state's solicitor examined and approved the same.

Construing this action, for the purpose of this case only, as a waiver or consent, it is noted that this was after the expiration of the time fixed by the statute. Therefore, should appellant's construction of the statute be accepted, as authorizing an extension of time by agreement, very clearly it could not be considered as giving effect to such agreement after the expiration of the time allowed. By analogy, the case of Bass Furnace Co. v. Glasscock, 86 Ala. 244 6 So. 430, is in point, holding, under the statute there in force, that--

"When an order is made during term time, allowing a bill of exceptions to be prepared and signed within 60 days, *** the term cannot be further extended, unless the order extending it is made before the expiration of the 60 days."

We have said this much in answer to the argument made, based upon the construction contended for by appellant. But the question is an important one of practice, and we think it proper to further state our disagreement with such construction of the statute.

Prior to the incorporation of section 3020 into the Code of 1907 (section 6434, Code 1923), a bill of exceptions not signed within the prescribed time would be stricken by the court on its own motion. The statute was of a restrictive character (Ex parte Hill, 205 Ala. 631, 89 So. 58) to prevent the appellate courts from striking such bills of exceptions ex mero motu, and only upon motion seasonably interposed. By so restricting the action of the court in this respect, the statute indirectly gave effect to the waiver or consent of the parties as to the time of signing such bill of exceptions, expressed and indicated by a failure to interpose the motion to strike. Said section 3020, however, related only to the question of the signing of the bill of exceptions, and not to that of its presentation.

It has been consistently held that the presentation of the bill of exceptions within the prescribed time was jurisdictional, and, when it appeared upon its face that it was not presented in time, the bill was stricken by the court of its own motion. Miller v. Whittington, 204 Ala. 207, 85 So. 394; 6 Michie Dig. 571.

Section 6434, Code of 1923, changes the former statute in this respect, and includes the matter of presentation,...