Harper v. State

• Decision Date: 01 June 1915
• Docket Number: 319
• Citation: 69 So. 302,13 Ala.App. 47
• Parties: HARPER v. STATE.
• Court: Alabama Court of Appeals

69 So. 302

13 Ala.App. 47

HARPER v. STATE.

No. 319

Court of Appeals of Alabama

June 1, 1915

Rehearing Denied June 15, 1915

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Furman Harper was convicted of crime, and he appeals. Reversed and remanded.

John B. Tally, of Scottsboro, and Hunt & Wolfes of Ft. Payne, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

BROWN J.

The judgment of conviction from which this appeal is prosecuted was entered on the 14th day of October, 1914, and the defendant was remanded to jail to await sentence. On the 17th day of October, 1914, the defendant was brought before the court and the sentence of the law pronounced against him.

The bill of exceptions was presented to the trial judge on the 14th day of January, 1915, and was signed on the 26th day of March, 1915.

Section 3019 of the Code of 1907 provides:

"Bills of exceptions may be presented at any time within ninety days from the day on which the judgment is entered and not afterwards. *** The judge must indorse thereon and as a part of the bill, the true date of presenting, and the bill of exceptions must, if correct, be signed by him within ninety days thereafter."

The presentation of the bill within 90 days from the entry of the judgment is the jurisdictional fact conferring on the judge authority to sign it and make it a part of the record. If the bill does not show on its face that it was presented within 90 days, it cannot be looked to as a basis of showing error. Box et al. v. Southern Ry. Co., 184 Ala. 598, 64 So 69; Hartselle v. Wilhite, 3 Ala.App. 612, 57 So. 129.

The insistence of the appellant that the language of section 3020 of the Code leaves room for the exercise of discretion as to whether the bill should be stricken is not pertinent here, as that section has no application when the bill is not presented within the 90 days. Box et al. v. Southern Ry. Co., supra. The only judgment from which the statute authorizes an appeal in criminal cases is the judgment of conviction. Code, § 6244; Wright v. State, 67 So. 798; Allen v. State, 141 Ala. 35, 37 So. 393. The entry of the judgment referred to in section 3019 as fixing the time from which to compute the 90 days within which the bill of exceptions was presented is the judgment from which an appeal is authorized. Central of Ga. Ry. Co. v. Ashley, 160 Ala. 582, 49 So. 388; Rainey v. State, 9 Ala.App. 51, 64 So. 168. The bill in this case was presented on the 92d day after entry of the judgment of conviction, and the motion of the Attorney General to strike the bill must prevail. McGay v. State, 183 Ala. 41, 63 So. 70; McOllister v. State, 183 Ala. 8, 62 So. 767.

The indictment on which the defendant was tried embraces a charge of murder in the first degree, a capital felony, and the record does not show compliance with the statute requiring the case to be specially set for trial and the drawing of a special venire. It has been repeatedly held that these statutes are mandatory, and, in the absence of a showing that such special venire has been waived under the provisions of section 7264 of the Code, the record to sustain a conviction must affirmatively show compliance therewith.

Kinnebrew v. State, 132 Ala. 8, 31 So. 567; Burton v....