Flake v. State

• Decision Date: 03 June 1911
• Parties: FLAKE v. STATE.
• Court: Alabama Court of Appeals

56 So. 47

2 Ala.App. 134

FLAKE v. STATE.

Court of Appeals of Alabama

June 3, 1911

Appeal from Law and Equity Court, Lee County; A. E. Barnett, Judge.

Madison Flake was convicted of assault and battery, and he appeals. Reversed and remanded.

Barnes & Denson, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for assault with intent to murder, was tried and convicted of an assault and battery, and appeals.

The trial was had on the 11th day of November, 1910, and the term of office of the judge who presided at the trial expired on the 16th day of November, 1910, and the next call of the division in the Supreme Court to which the county belonged was regularly had on November 21, 1910, five days after the expiration of the term of office of the presiding judge and ten days after the judgment of conviction.

Section 3019 of the Code of 1907 provides that bills of exceptions may be presented to the judge who presided at the trial at any time within 90 days after the rendition of the judgment. Section 3022 of the Code provides that if the judge dies resigns, or is impeached, or his term of office expires, or from other good cause he does not sign a bill of exceptions duly presented to him within the proper time, the bill of exceptions may be established in the Supreme Court, but the application to establish the same must be filed on or before the call of the next division of said court of the causes of the county in which the case was tried, after such death resignation, impeachment, or expiration of the term of office of such presiding judge, provided that in no case can such application be filed after one year from the rendition of such judgment. In the present case, the bill of exceptions was not signed by the presiding judge before the expiration of his term of office, and no application to establish a bill of exceptions was filed at the first call of the division of the Supreme Court of the causes of the county in which the conviction was had next after the expiration of the term of office of the presiding judge, but was filed at the succeeding call of said division and within less than 12 months after the expiration of the term of office of said judge.

It is contended on behalf of the state that the application to establish the bill of exceptions in this case, not having been filed at the first call of the division of the Supreme Court, but at the second call of said division after the expiration of the term of office of the presiding judge comes too late. The statutes relative to the presentation and the signing of bills of exceptions and their establishment when not signed, by appropriate applications to the Supreme Court, should be construed as a whole, for they relate to the same subject-matter, and they should be so construed and enforced as to give effect to the legislative purpose which called them into existence. The right of appeal is too firmly imbedded in our civil and criminal jurisprudence, and has been too carefully preserved and amplified by legislative enactment, for us to place upon this statute the rigid construction asked of us by legal representatives of the state. While it is the purpose of the statute to require such applications, unless there is good cause shown for not so...