Ladd v. State

92 Ala. 58 | Ala. | 1890

WALKER, J.

1. By an order made during the term at which the judgment was rendered, the court fixed the time in which the bill of' exceptions should be signed after the adjournment. The judge in vacation allowed several additional extensions of the time so fixed. Each allowance of further time was made before the expiration of the time fixed by the next preceding order, so that there was no lapse or period during which the bill of exceptions could not have been signed under an existing order; and it was signed -within the time last allowed by the judge. The authority of the judge in this *60regard was not exhausted by one extension of the time fixed during the term. Prior to the passage of the statute now regulating the subject, bills of exceptions were required to be signed during the term at which the trial of proceedings was had, or, by written consent of the parties, or their counsel, filed in the cause, at any time before the next succeeding term of such court, and not afterwards. — Code of 1886, § 2761; and Rule 30, p. 810. The present statute provides thaty in no case, shall the time allowed by the order made during the term, or by the judge in vacation, exceed six months, — Acts of 1886-7, p. 126; Code of 1886, note to § 2762. The legislature recognized the fact, that it is often impracticable to prepare a bill of the exceptions during the term of the court at which they were reserved ; and the purpose of the statute was to relieve parties, in this particular, of any dependence upon their adversaries. The court, or the judge in vacation, may allow the further time which formerly could have been secured only by the consent of the parties or their counsel. The remedial operation of the statute is not to be restricted by a narrow construction. A fair interpretation of its language leads to the conclusion that, for good cause, the judge in vacation may, by one or. more orders to that'effect, extend the time fixed during the term, so long as the extension does not go beyond six months after the term. The motion to strike out the bill of exceptions is overruled.

2. The defendant failed to specify any ground of objection to the question propounded by the counsel for the State to the witness Brown. There was no error in disregarding such a general and undefined objection. — Kansas City, M. & B. R. R. Co. v. Smith, 90 Ala. 25. The objection now urged, that the question necessarily embraced the time when the defendant was in Tennessee, bears upon only a part of the question and. of the answer thereto; and if this ground of objection had been specified, the court could have limited the testimony to what occurred in Alabama. The objection was too broad. The sustaining of it would have operated to exclude competent as well as incompetent evidence.

3. There is nothing in the point now suggested, as a ground upon which said objection should have been sustained, that the prosecution had elected to rest the case against the defendant on the proof that he dropped the pistol in his pocket after he alighted from the buggy, and was thereby cut off from showing that before that time he had been carrying the pistol concealed about his person. The offense charged is continuous in its nature, and the inquiry could have been extended throughout the defendant’s trip so long as he was in the State *61of Alabama. — Etress v. The State, 88 Ala. 171; Smith v. The State, 79 Ala. 257.

4. There was evidence tending to show that, while- the defendant was riding, the pistol was tinder a sheep-skin rug in the bottom of the buggy; that when the defendant alighted, he took the pistol from that place, and kept it in his hand, and that it was not concealed about his person at any time. If the jury believed from the evidence that this was the correct version of the transaction, the defendant should not have been convicted. He was entitled to an acquittal, unless he carried a pistol concealed about his person. — Code of 1886, § 3775. While it is not necessary to a conviction that the pistol was carried on the person, yet it must have been so connected therewith that the locomotion of the body carried with it the weapon as concealed. When one’s weapon is in a vehicle in which he is riding, and not attached to his person at all, it can not be said to be concealed about his person within the sense of the statute. — Cunningham v. The State, 76 Ala. 88. In Diffey v. The State, 86 Ala. 66, the proof was that the pistol was concealed in a hand-basket, which the defendant'carried in his hand, or on his arm. There the concealed weapon accompanied the defendant in his movements, the same as if it had been in his coat pocket. In this case, on the above mentioned aspect of the evidence, the pistol was not so connected with the person of the defendant as to go with him in his movements. When referred to this aspect of the evidence, the first charge requested by the defendant was correct, and the Circuit Court erred in refusing to give it. For this error, the judgment must be reversed.

Reversed and remanded.

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