Ramey v. State , 9 Ala. App. 51 ( 1913 )

PELHAM, J. —

It is shown by a certificate of the trial judge' appended to the bill of exceptions sought to be established on this appeal that the bill was first presented to the judge on the 21st day of June, 1913, and was “refused because not presented within the time required by Iuav.” It is conceded that June 21st is the true date of presentation. The judgment entry set out in the transcript shoAvs that the defendant was tried and convicted, and a judgment of guilty entered and a fine of $50 assessed against him on the 14th day of February, 1913. From this judgment of conviction of the offense charged, based on and folloAving the verdict of the jury, and fixing the fine in the amount of $50 as assessed by the jury, an appeal would lie, and the time within which a bill of exceptions could have been presented to bring the presentation within the time required by law must be computed from the date of this judgment of conviction rendered on the 14th day of February, 1913; and, the bill not having been presented within the 90 clays from the date on which judgment was entered, as provided by the statute (Code,. § 3019), the appellant’s motion to establish a bill of exceptions must fail.

It appears from the judgment entry that the defendant confessed judgment for the fine and costs on February 22, 1913, and that the court suspended sentence pending an appeal on the 24th clay of March, 1913. It is variously insisted that the bill of exceptions was presented within the time required by law because of the action of the court shown to have been taken upon these dates, and for the reason that defendant’s motion for a new trial 'was overruled on March 22, 1913. Even if it would he proper, which it is not, to take the date on which the fine and costs were confessed as the time from which the 90 days should commence to run, still the bill would not have been presented within the time. The presentation having been made more than 90 days after rendition of the judgment, even if it had been made within 90 days from the date on which the motion for a new trial was overruled, nothing could be presented by it except the action of the court in overruling the motion for a neAV trial (Yolande C. & C. Co. v. Norwood, 4 Ala. App. 391, 58 South. 118), and the action of a trial court in passing on such a motion in a criminal case is not reviewable here (Mangrall v. State, 1 Ala. App. 189, 55 South. 446.) Moreover, the bill of exceptions was not presented Avithin 90 days from overruling the motion. The record shows that the motion was overruled on March 22, 1913, and the bill was not presented to the trial judge until June 21, 1913.

The indictment charges the offense in the language of the statute. The demurrers were not well taken, and the court properly overruled them. — Code, § 6870; Walker v. State, 91 Ala. 32, 10 South. 30.

It is the general rule that an offense created by statute may be charged in the language of the statute.— Sellers v. State, 7 Ala. App. 78, 61 South. 485.

The indictment was not subject to demurrer because <of misjoinder. — Code § 7151, and authorities there collected and cited.

The record presents no error, and the judgment of the court below will be affirmed.

Affirmed.