Scott v. State

Decision Date21 July 1904
Citation141 Ala. 39,37 So. 366
PartiesSCOTT v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Sumter County; Henry B. Foster, Judge.

Bob Scott was convicted of manslaughter in the first degree, and appeals. Reversed.

A. G. &amp E. D. Smith and J. J. Altman, for appellant.

Massey Wilson, Atty. Gen., for the State.


The point is made by the Attorney General that what purports to be a bill of exceptions in the record should not and cannot be considered by this court. He predicates his contention upon the following facts shown by the record: The trial of the case was had on the 26th day of October, 1903. On October 31st following (this being the last day of the term) an order was entered on the minutes of the court "that sixty days be allowed defendant within which to file bill of exceptions." On the same day defendant filed his motion in arrest of judgment and for a new trial, which was "continued, to be heard in vacation." On December 16, 1903, an order was made by the judge of the Sixth Judicial Circuit for a special term to commence on the next day "for the hearing of defendant's motion, and for the trial of such other cases, civil and criminal, as may be tried by consent." This special term was held in pursuance of the order, and adjourned during the day on which it was convened. In the judgment entry disallowing an amendment, offered by defendant, of his motion, "it is ordered by the court * * * that defendant be allowed until the 1st day of February, 1904, to prepare and have signed a bill of exceptions in this cause, in the original cause, and also the motion." On January 28, 1904, the judge extended the time 10 days for preparing and signing the bill of exceptions. On February 1, 1904, another order was made by the judge extending the time until May 1, 1904. The paper purporting to be the bill of exceptions was signed on April 25, 1904. From the foregoing statement, it is apparent that whether the paper is or is not a bill of exceptions depends upon the validity of the order of the court made at the special term extending the time for signing to February 1st. If the court was without authority to make it, under the statutes regulating the extension of time for signing bills of exceptions, then the judge was without authority to sign the paper, and it did not and could not become a bill of exceptions. Section 616 of the Code of 1896 provides that "no bill of exceptions can be signed after the adjournment of the court during which the exception was taken * * * except in such cases as is otherwise provided." Section 617 provides that "the court may in term time fix a time in which the bill of exceptions may be signed, and the judge may, in vacation, extend such time." It is quite apparent from these statutes that authority to extend the time after it has been fixed by the court in term time is conferred alone on the judge, to be exercised by him in vacation, and not upon a court which he may subsequently convene. The manifest purpose of the statutes, and one which we think is fairly declared by them, is that, after the term of the court has adjourned at which the case was tried, the court has no further control over the matter of time within which a bill of exceptions is to be signed, any more than it has over other matters finally disposed of by it. It cannot with reason be contended that, if the court should adjourn without making an order fixing a time for the signing of a bill of exceptions in a cause disposed of, the court at the subsequent term, whether special or regular, could add to the minute entry in the cause an order fixing the time. And when the court fixes the time by an order, say for a given number of days, we apprehend that it cannot at a subsequent term change the order by lessening the number of days. If it cannot lessen the time, it cannot, of course, extend it, for it has as much authority for doing the one as...

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17 cases
  • Morris v. State
    • United States
    • Alabama Supreme Court
    • April 28, 1906
    ... ... publicly draw therefrom not less than twenty-five nor more ... than fifty of such names for each capital case." It has ... been uniformly held by this court that this section of the ... Code is mandatory and the record must affirmatively show a ... compliance with its terms. Scott's Case (Ala.) 37 So ... 366; Bankhead's Case, 124 Ala. 14, 26 So. 979; ... Watkin's Case, 89 Ala. 82, 8 So. 134; Washington's ... Case, 81 Ala. 35, 1 So. 18; Jordan's Case, 81 Ala. 20, 1 ... So. 577. Neither the original record nor the one sent up in ... response to the certiorari shows the ... ...
  • Richter v. State
    • United States
    • Alabama Supreme Court
    • June 18, 1908
    ...actually in session, and any act of the court, with a single judge sitting, would be the act of the judge. In the case of Scott v. State, 141 Ala. 39, 37 So. 366, the provided that "the court may in term time fix a time in which the bill of exceptions may be signed, and the judge may, in va......
  • Moss v. Mosley
    • United States
    • Alabama Supreme Court
    • February 6, 1906 there made between the court and the judge with respect of such extension. See the reasoning of Judge Tyson on this subject in Scott's Case (Ala.) 37 So. 366. See, Wright's Case, 136 Ala. 50, 34 So. 187. Section 617 of the Code of 1896, confers upon the court in term time the authority t......
  • Western Ry. of Alabama v. Russell
    • United States
    • Alabama Supreme Court
    • June 30, 1905
    ...extending the time for its signing, was made by the court and not by the judge. Western Ry. of Ala. v. Arnett (Ala.) 34 So. 997; Scott v. State (Ala.) 37 So. 366. McCLELLAN, C.J., and SIMPSON and ANDERSON, JJ., concur. ...
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