Naro v. State

GARDNER, J. This appeal is prosecuted from a judgment of conviction for murder in the second degreé. Motion is made by the state to,strike the bill of exceptions, which presents the question of first consideration. The bill of exceptions was presented to the trial judge on May 30, 1923. The time for the approval of this bill expired midnight of August 28, 1923. Without having approved and signed the same, the trial judge left the state of Alabama on July 15, 1923, and did not return until September 14, thereafter. Learning of the absence of the trial judge, counsel for appellant presented the bill to an associate justice of this court on August 27, 1923, and the bill was marked filed by the justice as of that date. It was again presented and marked filed by the justice of date August 30, 1923, out of abundance of caution on .the part of counsel for appellant, we presume, but which is a matter of no consequence upon the consideration of this question. The bill of exceptions was presented to a member of this court, under the provisions of the act approved September 25, 1915 (General Acts 1915, p. 816), and, so far as that question is concerned, the facts above stated bring this presentation within the influence of the above-cited act. Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446. Counsel for the state strenuously insist, however, that, conceding the proper presentation of the bill to a member of this court, *6 nevertheless there has been a failure to comply with the above-cited statute in material respects, which should operate to strike the bill, in that no order in writing was made by the justice fixing the time and place for hearing the matter of settling, and signing such bill, and prescribing the notice to be given counsel for the opposite party, and, further, that counsel for the state has been served with no written notice as to the time and place of hearing the matter of settling such bill of exceptiops. Counsel for appellant has submitted affidavits to the effect that the associate justice to whom the bill was presented fixed September 26, 1923, for the hearing, and that such time was extended by verbal communications with the justice until February 16, 1924, when the same was signed by him as established of that date. Appellant’s counsel also presented affidavits to the effect that he verbally notified counsel for the state of these facts, and that he would proceed for the establishment of the bill on said February 16, 1924. Counsel for the state, however, offer counter affidavits, thus presenting, it seems, a disputed issue of fact. It is without dispute that no order in writing was made fixing the time and place for the hearing, and no notice in writing was served upon opposing counsel. This brings us to a consideration of the proper construction of that portion of the act of 1915, above cited, pertinent to this feature of the case. Said act 'provides that, upon presentation of the bill of exceptions to a member of this court, he shall— “indorse thereon the true date of presentation to him, and fix a time and place for hearing the matter of settling and signing such bill and prescribe the notice to be given the counsel for the opposite party and on such hearing, * * * shall make an order establishing the bill of exceptions, as settled, and shall attach the same to such bill and date and sign the same, which must be within thirty days from the time presented to him, unless longer time be granted, and this shall be the bill of exceptions.” While it is true the strict letter of this statute does not require the order fixing the time and place for the hearing and prescribing the notice shall be in writing, yet it is to be construed in the light of the rules of law governing judicial proceedings. This is a court of record wherein the acts and proceedings of the court are enrolled as for a perpetual memorial (11 Cyc. 657), and, as said by this court in Ex parte Bradshaw, 174 Ala. 243, 57 So. 16, such courts “speak only through their records.” The matter of hearing and settling the hill of exceptions in cases of this character, under the provisions of the above act, is a judicial proceeding, and, indeed, but a more expeditious manner than is provided by section 3021 of the Code of 1907, and was clearly intended, in the character of cases therein specified, to act as a substitute for said Code provision. Sitting, for the purpose of such a hearing,'a member of this court is a court in the proper and usual sense of that term. 11 Cyc. 652-655, and authorities cited in the note. The rules of courts of record cannot rest in parol, but must be placed upon the record of the court (11 Cyc. 744), and the necessity for records of courts of such character and what constitutes the record, is pointed out in 11 Cyc. 762, 763, and the cases cited therein. The matter of settling and signing the bill of exceptions, presenting, as it frequently does, a contested issue of fact, is one of much importance, and, being a judicial proceeding in a court of record, we are of the opinion, in the light of the foregoing rules of law, that the statute must necessarily be construed to the effect that the order fixing the time and place of hearing, and prescribing the notice to be given, must be in writing and become a part of the record of the cause. Such an order is an essential prerequisite to the establishment of the bill of exceptions, and, there appearing no such order in the record, we entertain the view it cannot be established by parol, and that the motion to strike upon this ground is well founded. It is a well-understood general rule that, where a statute directs notice to be given, and is silent as to the manner of giving it, personal service is necessary. 29 Cyc. 1119. And it was equally as well settled that, wherever notice is required or authorized by statute, written notice is understood. 29 Oyc. 1117. Here the statute is silent as to whether there shall be personal service of notice, and also as to whether the notice shall be in writing. The rules of law, above stated, clearly show, however, that in the instant case the statute must read as signifying a necessity for personal service and for written notice. While the statute provides that the member of this court shall prescribe the notice to.be given to the opposite party, we think, very clearly, this was intended to have application as to the length of time only, and not in any manner to be in conflict with the general rules of law just stated. Of course, there may be acceptance of notice, as well as waiver thereof, but neither is shown in the instant case,, and it is without dispute there was no personal service by written notice. It is well settled that proceedings to establish a bill of exceptions are of statutory origin, and must be strictly pursued. 3 Cyc. 35. As shown herein, we construe the act as requiring an order in writing fixing the time and place of the hearing, and prescribing the notice as well; also, as personal service by written notice, neither of which appears *7 in the instant case. The requirements, therefore, of said act of 1915 have not been met, and it must follow that the motion to strike the bill of exceptions be sustained, and the bill of exceptions stricken. The record proper contains no error, and it results that the judgment will be here affirmed. Affirmed. ANDERSON, O. J., and SOMERVILLE, THOMAS, MILLER, and BOULDIN, JJ., concur.