Russell v. State

May 30, 1918

6 Div. 777.

Reporters:: , ,
Before:: Anderson

ANDERSON, O. ,T.

[1] The bill of exceptions in this ease was presented to the trial judge within 90 days after the judgment was entered, as required by Code 1907, § 3019. This provision also applies to bills of exceptions in criminal cases. Section 6248, Code 1907. It is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍true the trial was entered into, and the verdict seems to have been rendered, November 8, 1917; but the judgment of the court upon the verdict was not pronounced or entered until November 24th, which was within 90 days of the presentation of the bill of exceptions to the trial judge on February 22, 1918. It is not the verdict of the jury that constitutes a judgment, but the pronouncement of a judgment by the court-upon the verdict. Wright v. State, 103 Ala. 95, 15 South. 506; Nichols v. State, 100 Ala. 23, 14 South. 539; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ayers v. State, 71 Ala. 11; Thomason v. State, 70 Ala. 20. The motion to strike the bill of exceptions is overruled.

[2] The defendant offered evidence tending to show that the deceased had induced the defendants wife to leave him, and, whether this was relevant or not, the state, in rebuttal, had the right to show that he beat her the night before she left, ás the jury could infer that this fact caused her to leave. A party cannot complain of the admission of irrelevant evidence, offered in rebuttal to irrelevant) evidence introduced ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by himself. M. & B. R. R. v. Ladd, 92 Ala. 287, 9 South. 169; Ford v. State, 71 Ala. 385; Gandy v. State, 86 Ala. 20, 5 South. 420.

[3] Charge 3, requested hy the defendant, was properly refused. It pretermits a reasonable, honest, or bona fide belief on the part of the defendant that his. life was in danger. Not only must the circumstances have been such as to lead a reasonable man to the belief- of danger, hut the defendant must have, at the time he acted, entertained an honest, bona fide, or reasonable belief of such ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍danger. Cheney v. State, 172 Ala. 368, 55 South. 801; Fantroy v. State, 166 Ala. 27, 51 South. 931; Harrison v. State, 144 Ala. 20, 40 South. 568.

[4] Charge 6, requested by the defendant, if not otherwise faulty, is abstract, as the evidence does not show that any blow was given the defendant by the deceased.

The other charges refused the defendant were either manifestly bad, or were cured by the given charges, as well as the general oral charge of the court.

[5] The failure to exclude so much of the solicitor’s argument as was made a basis for a new ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial was not only free from reversible error, but no objection or motion to exclude the same was made by the defendant.

A careful consideration of the record in this case reveals no reversible error, and the judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur.