77 Ala. 98 | Ala. | 1884
By the act approved February 17th, 1885 (Sess. Acts, 140), it was provided, “that the refusal of the primary court to order a change of venue in any criminal case shall no longer vest [rest ?] in the irrevisable discretion of the court to which application for the change of venue is made, but, after final judgment, may be reviewed and revised in the Supreme Court, in the same manner, and to the same extent, as other questions of law arising in criminal cases.” This is the first case which has come before us on this statute, and we have to regret that the question is not so raised as that we can consider it. It will be noted, that the statutory provision is, that such ruling “may be reviewed and revised in the Supreme Court, in the same manner, and to the same extent, as other questions of law arising in criminal cases.” Section 4978 of the Code of 1876 declares in what manner questions of law may be reserved by defendants in criminal cases. It must be “by bill of exceptions, duly taken and signed by the presiding judge.” In Ex parte Knight, 61 Ala. 482, this section of the Code was construed. In that case, as in this, the judgment-entry recited the ruling of the court which was attempted to have reviewed, and that the defendant excepted to the ruling. In that case, as in this, there was no bill of exceptions signed by the presiding judge. This court said: “The reservation must be made at the time of the decision of the question — it is the act of the defendant, of which the court must be notified, that it may be introduced on the record, and justify the subsequent order suspending the. execution of the judgment. Giving to the recital of the record — ‘the defendant excepted to the decision of the court’ — its largest significance, and it could indicate no more than that he had a present intention of reserving the decision for the consideration of this court, and would carry the intention'into effect thereafter, by a bill of exceptions.” The question in that cause not appearing in the record proper, we hold it was not reserved, and could only have been reserved by bill of exceptions.
In the present record there is no bill of exceptions. The clerk has copied in the transcript several affidavits, which purport to have been subscribed and sworn to. Such affidavits are mere testimony for a single purpose, and are no part of the
We deem it not improper to add, that if the affidavits found in this transcript comprise the entire testimony before the Circuit Court, on which the motion for change of venue was allowed, we are not prepared to say we find in them enough to justify a reversal of that court’s judgment. — Edwards v. The State, 49 Ala. 334; Nooe v. Garner, 70 Ala. 443.
Appeal dismissed.