Jones v. State, 4 Div. 39.
| Decision Date | 27 April 1939 |
| Docket Number | 4 Div. 39. |
| Citation | 237 Ala. 614,188 So. 384 |
| Parties | JONES v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
J. T Jones was convicted of murder in the first degree, and he appeals.
Affirmed.
W. R Belcher, of Phenix City, for appellant.
Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
The appellant was indicted by a Grand Jury of Russell County for the offense of murder in the first degree, and upon his trial upon said indictment was convicted of murder in the first degree, as charged, and his punishment fixed by the trial jury at death. From the judgment and sentence pronounced upon the verdict against the appellant, defendant in the court below, this appeal is prosecuted.
In the outset we are confronted by a motion of the State to strike the bill of exceptions found in the record. The State's motion is predicated upon the ground that what purports to be the bill of exceptions was not filed and presented to the trial judge, or filed with the Clerk of the Circuit Court of Russell County, within 90 days from the date on which the judgment was rendered, nor within 90 days from the date on which the judgment on the motion for new trial was entered in said cause.
It affirmatively appears that the trial of the defendant was had on May 11th, 1938, and that sentence was pronounced upon the defendant on May 14th, 1938, upon the verdict of the jury which was returned into court on May 11th, 1938; that a motion for new trial was filed in said cause on May 20th, 1938, and that this motion was by proper orders continued from time to time until October 3rd, when, on that day, it was heard and considered by the court, and by proper order entered was overruled and denied. This judgment and order overruling the motion for new trial was made, entered and dated October 3rd, 1938.
The bill of exceptions was not filed and presented to the trial judge, nor filed with the clerk of the circuit court of said county, until January 3rd, 1939, which was more than 90 days from the date on which the defendant's motion for new trial was overruled. The motion of the State to strike the bill of exceptions upon the stated ground is granted and the bill of exceptions stricken. It is so ordered. Code, §§ 6433, 6434; Stroup v. Alabama Power Co., 216 Ala. 290, 113 So. 18; City of Albany v. Black, 216 Ala. 4, 112 So. 433; Ex parte Hill, 205 Ala. 631, 89 So. 58; Patterson v. State, 229 Ala. 270, 156 So. 567.
However, we do not wish to be understood as holding that this Court is without authority or power to refuse to strike a bill of exceptions in a criminal case, when not presented in 90 days to the trial judge. If from our inspection of the bill of exceptions, as signed by the trial judge, we shall reach the conclusion that a defendant's constitutional right to a fair and impartial trial has not been accorded him, we will not, in the exercise of our discretion, hesitate to overrule a motion to strike the bill of exceptions based upon the ground that the bill was not presented to the trial judge within 90 days from the date of the judgment, or within 90 days from the date of the order overruling a motion for a new trial.
The statute--Section 6434 of the Code--is not mandatory upon us nor are we otherwise under any imperative duty to strike the bill of exceptions in such cases. The matter is addressed to our sound discretion, to be wisely exercised in all ca...
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Clark v. State, 4 Div. 61.
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