77 Ala. 68 | Ala. | 1884
Section 4978 of Code 1876 provides: “ Any question of law, arising in any of the proceedings in a criminal case, tried in the Circuit or City Court, may be reserved by the defendant, but not by the State, for the consideration of the Supreme Court; and if the question does not appear on the record, it must be reserved by bill of exceptions, duly taken and signed by the presiding judge as in civil cases.” In civil cases, “ any charge, opinion or decision of the court, touching the cause of action, and which would not otherwise
Although a motion in arrest of judgment, before sentence, is of right in the defendant, it must be founded on defects apparent on the face of the record. — Sparks v. State, 59 Ala. 82; Brown v. State, 52 Ala. 345 ; Bish. on Crim. Proc., §§ 1282-5. The record here meant is the record of the proceedings, orders and judgments, for the revision of which a writ of error was, by the common law, the appropriate remedy; or, as applicable in this State, of the pleadings, proceedings, papers, orders and judgments, which the clerk, by sections 572 and 671 of the Code, is required to keep. A motion in arrest of judgment must be founded on some defect apparent on the record, as it stands at the time the motion is made and ruled on.
The record, other than the bill of exceptions, does not show the defects on which the motion in arrest of judgment is made. In Banks & Wood v. State, 72 Ala. 522, the objection was made, that it did not affirmatively appear from the record that the defendants were present in court when the verdict was returned. It is said : “ The objection is not sustained by the recitals of the record, which affirm their presence, and represent as a continuous, unbroken proceeding, the trial and all its incidents, until the sentence of the law was pronounced by the court. The recitals of the judgment-entry are contradicted and shown to be untrue, only by the bill of exceptions, which is not its legitimate function.
The motion in arrest of judgment, and the ruling of the court thereon, do not appear otherwise than from the bill of exceptions. It has been repeatedly held by this court, that it is not the appropriate office of a bill of exceptions to present for revision any matter which otherwise would appear of record. It will not be permitted to assume the office of the record, which the law requires the court to keep, where no bill of exceptions is resorted to, and on which it cannot trench. Any matter apparent on the record, as a defect in the indictment, sustaining a demurrer to any plea of the defendant, or overruling a motion in arrest of judgment, must be presented for revision by the record, without the aid of a bill of exceptions. — Ex parte Knight, 61 Ala. 482; Petty v. Dill, 53 Ala. 641. We can not pass on the ruling of the court, as it does not appear on the record. Affirmed.