Tarver v. State , 137 Ala. 29 ( 1902 )

DOWDELL, J.

An order of the court made on the 6th day of January, 1903, allowed to the defendant thirty days from that date for a bill of exceptions. The bill of exceptions bears no date as to the time of the signing by the presiding judge, but it recites at the conclusion and just before the signature of the judge, that “the defendant now tenders this his bill of exceptions, which is signed by the. presiding judge within the time fixed by the order of the court.” This is a prime facie showing that the bill was signed on a day within, the thirty days from the date of the order, as much so .as if it had borne date of a particular day within the prescribed time. The motion, therefore, to strike the bill, in the absence of evidence: contradicting the recital that it was signed within the time prescribed by the order of the court, must be denied.

There is no mleritin the exception reserved to .the action of the court in reference to the special juror Higgins. The juror was not peresent, but failed to answer when called and a forfeiture was entered against him. It was impossible to examine the juror on his voir dire when he was not present, and the court was not required to delay in proceeding with the. trial until the juror could be found and brought into court, for the! purpose] of such examination, and this was in effect the insistence of the defendant.

It is ibe province and duty of the court to pass upon the competency in evidence. Charge 1 requested by the defendant violated this rule of law in referring the question of the competency of thei evidence to the jury, and was for that reason, if no other, properly refused. Charge No. 11 was palpably bad. In'the first place there was no evidence that the defendant shot the deceased in self-defense, and in the next place, if there had been, the charge was bad in the omission to hypothesize the constituent elements of self-defense, and in leaving it to the jury to say what would constitute self-defense. Charges 13 and 11 were argumentative, and there was no error in their refusal. Charge 15 is obscure and confused, and was calculated to mislead the jury.

We find no error in the record, and the judgment will be affirmed.