63 Ala. 203 | Ala. | 1879
I myself would prefer to hold that, under section 3113, Code of 1876, the agreement signed by counsel who was employed to aid in the prosecution of the defendants, was a sufficient “ consent or agreement of counsel in writing,” to authorize the presiding judge to consider and sign a bill of exceptions after the adjournment of the term. My brothers, however, think that only the solicitor — the law officer, whose duty it is to prosecute in behalf of the State— can give such consent, or enter into such agreement. There are strong reasons of public policy in favor of their views.
On the merits of the motion, there is a very decided preponderance of evidence, that the bill of exceptions tendered for signature does not, in its entirety, truly state “ the point, charge, opinion or decision, wherein the court is supposed to err, with such a statement of the facts as is necessary to make it intelligible.” — Code, § 3108. This being the case, it was not the duty of the presiding judge to sign the same. — Garlington v. Jones, 37 Ala. 240; Wood v. Brown, 8 Ala. 563; Strawbridge v. The State, 48 Ala. 308; Alford v. Eubank, 44 Ala. 276; Tuskaloosa Co. v. Logan, 50 Ala. 503; Kirby v. Vann, 51 Ala. 221; Small v. McCalley, Ib. 527; Rolater v. Rolater, 52 Ala. 111; Chapman v. Holding, 54 Ala. 61; Judge v. The State, 58 Ala. 402.
There being no valid agreement that a bill of exceptions might be signed after the adjournment of court, we would not be at liberty to establish the bill tendered, even if it truly set forth the points reserved, and the necessary statement of facts to show their pertinency. As to the bill approved by the presiding judge, and shown to be a true statement of the rulings excepted to, the case is not brought within any provision of the statute, and we have no authority to establish it. It is beyond the power of the circuit judge to- sign it, in the absence of the solicitor’s agreement that it maybe signed in vacation.
Motion denied.
