Brown v. State , 133 Ala. 152 ( 1901 )

SHARPE, J.

The verdict in this case was rendered January 22, 1901, and that which is set out in the record as a bill of exceptions was signed on July 20th, 1901. The time for signing bills of exceptions in the criminal court of Jefferson county is limited to sixty days from the trial, when not extended by order of court or written agreement as authorized by the Code. This transcript does not show there urns any order of court making such extension or that there was any written agreement on the subject except an agreement to the signing between the solicitor and counsel for defendant dated on the day the bill was signed. On the direct auauthority of Tisdale v. Ala. & Ga. Lumber Co., 131 Ala. 456, it must he held that this agreement not having been made until after the legally authorized time for signing had elapsed was not effective to restore opportunity or authority for signing.

Under the law as declared by many decisions of this court the signature of the judge does authenticate a bill of exceptions so as to authorize its consideration by this court, unless the i*ecord shows affirmatively that the signing was done in respect of time, in conformity with the statutes on that subject. — Dantzler v. Swift Creek Mill Co., 128 Ala. 410; Ala. Min. R. R. Co. v. Marcus, Ib. 355; Sterrett v. Davie, 129 Ala. 269, and cases therein cited.

Such affirmative showing is not supplied by the recitation contained in the written agreement of counsel which, after setting forth reasons for the postponement recites, further that “therefore the examination and signing of said bill of exceptions has been duly postponed from time to time by the consent of the solicitor and counsel for defendant.” This court must be enabled to judge from what was done rather than from the opinion of counsel or of the trial judge whether .the time for signing was legally postponed, and, therefore, if an order of court is relied on as effecting a postponement it should be set out in the transcript (Dantzler’s case, supra), and for like necessity, written agreements intended to continue authority for signing should be exhibited in the record.

For the reason stated that which is incorporated in the record as a bill of exceptions cannot be considered as such.

The record proper disclosing no error, the judgment must be affirmed.

Txsox, J., (Usísonta from tlie conclusion that the written agreement did not authorize the signing of the bill of exceptions, adhering to his views expressed in Tisdale v. Ala. & Ga. Lumber Co. 131 Ala. 456.