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tion of the writ of error and statutory appeal ever written.) Granting time to prepare bill of exceptions does not prevent discharge of defendant because of unauthorized detention.-Ex parte Goucher, 103 Ala. 305 (15 So. 601). Rulings on charges requested in criminal cases may be reviewed on appeal, though no exceptions reserved to the rulings of the court and no assignments of error thereto.-Feagin v. State, 139 Ala. 107 (36 So. 18), overruling Smith v. State, 130 Ala. 95 (30 So. 432); Williams v. State, 130 Ala. 107 (30 So. 484). Refusal to allow defendant to ask additional questions to a juror to test his competency is not matter of exceptions.-Lundy v. State, 91 Ala. 100 (9 So. 189). Refusal to allow amendments of pleas must be excepted to.—Bright v. State, 76 Ala. 96. Exceptions must not be general; specific objections must be pointed out.-Cohen's case, 50 Ala. 108; Irvin's case, Ib. 181; Gray's case, 63 Ala. 69; Hardin's case, Ib. 39; McGehee's case, 52 Ala. 224; Farley's case, 72 Ala. 170; Wood's case, 76 Ala. 35; Dickey's case, 68 Ala. 508; Williams's case, 68 Ala. 551. And point of objection must appear to have been subject of exception when made.-Reynolds's case, 68 Ala. 502. Exception to charge of court must be taken before jury leave the bar.-Reynolds's case, supra. Certainty requisite in setting out matter of exception.-Boswell's case, 63 Ala. 307; Strawbridge's case, 48 Ala. 308; Ex parte Mayfield, 63 Ala. 203; Burns's case, 49 Ala. 370. Exception induced by party excepting, not allowed. -Leonard's case, 66 Ala. 461; Shelton's case, 73 Ala. 5. Bill of exceptions not necessary, when error affirmatively appears of record.-Foster's case, 39 Ala. 229; Ex parte Knight, 61 Ala. 483. Error without injury, no ground of exception or complaint.-Taylor's case, 48 Ala. 157; Blevins's case, 68 Ala. 92; Edwards's case, 49 Ala. 334; Childs's case, 52 Ala. 14. When rule of "error without injury'' does not apply.-Williams's case, 47 Ala. 659; Carson's case, 50 Ala. 135. When not applied in murder.-Mitchell's case, 60 Ala. 26. Contents of bill of exceptions; what sufficient recitals; should not be too voluminous; only material matters to be stated.-Smith's case, 68 Ala. 429. Bill construed most strongly against exceptor.-Powell's case, 25 Ala. 21. See Leyman's case, 47 Ala. 686. When there is conflict between judgment entry and bill of exceptions, latter will control.-Reynolds's case, 68 Ala. 502. Judge not bound to sign bill, unless matter wherein court is supposed to err is made intelligible.-Strawbridge's case, 48 Ala. 308; Ex parte Mayfield, 63 Ala. 203. Motion to establish bill of exceptions. Judge's case, 58 Ala. 402. See Ex parte Mayfield, 63 Ala. 203. Solicitor alone can consent to signing after adjournment of court.-Ex parte Mayfield, 63 Ala. 203. Bill of exceptions taken on 20th of July, 1871, and signed 18th of following December in vacation, under agreement, etc., is valid.-Stephens's case, 47 Ala. 696. Must affirmatively appear to have been signed in time prescribed.-Ib. Where court adjourned at midnight, Saturday, bill signed next morning not considered part of record; when taken and signed as required by law, becomes part of the record.-Williams's case, 47 Ala. 659; Bryant's case, 36 Ala. 270. Mandamus to compel signing.-Etheridge v. Hall, 7 Port. 47; Ex parte Huckabee, 71 Ala. 427. General charge of the court; power of court to state evidence.-Tidwell's case, 70 Ala. 33. How should present the case.-Ib. Requisites of general charge.-Martin's case, 47 Ala. 564; Judge's case, 58 Ala. 407; Evans's case, 62 Ala. 6; Woodbury's case, 69 Ala. 242; Jackson's case, Ib. 250. May read extracts from reported decisions.-Holley's case, 75 Ala. 14. If separable into two disconnected propositions, when erroneous.-Martin's case, 47 Ala. 564. Should charge on different aspects of the case. Smith's case, 68 Ala. 424. Should not need explanation.-Wicks's case, 44 Ala. 398. Nor be upon irrelevant evidence.-DePhue's case, Ib. 32. May state a conflict in evidence.-Charles's case, 49 Ala. 332. May charge as to the evil consequences of the offense.—Weed's case, 55 Ala. 13; Shorter's case, 63 Ala. 130. Charge on the effect of the evidence, to convict or acquit; cannot be given ex mero motu.-Edgar's case, 43 Ala. 312; Beasley's case, 50 Ala. 149; Foster's case, 47 Ala. 643. See Davidson's case, 63 Ala. 432. Nor if there is any material conflict in the evidence.-Allman v. Gann, 29 Ala. 240; Williams's case, 47 Ala. 659; Sanders's case, 58 Ala. 371. Nor when the evidence is circumstantial, or any material fact is to be inferred, and not a legal pre

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sumption from it.-Perkins's case, 50 Ala. 154; Sims's case, 43 Ala. 33; Sultzner's case, Ib. 24; Ward's case, 37 Ala. 158; Morgan's case, 33 Ala. 413; Easterling's case, 30 Ala. 46; Oliver's case, 17 Ala. 587; Weil's case, 52 Ala. 19. Nor where the evidence only tends to prove the case.-Carter's case, 44 Ala. 29. When should give such charge for defendant.-Green's case, 68 Ala. 539. When for the state.-McInnis's case, 51 Ala. 23. Charges asked by parties; if the charge states correct law, and is not abstract, it must be given. -Carson's case, 50 Ala. 135; Williams's case, 47 Ala. 659; Eiland's case, 52 Ala. 322; Edgar's case, 43 Ala. 45. Must be given or refused without qualifi cation.-Edgar's case, 43 Ala. 45; Eiland's case, 52 Ala: 322; Clifton's case, 73 Ala. 473; Rice's case, 47 Ala. 38. If it requires explanation to prevent misleading, may be refused.-Dotson's case, 62 Ala. 141; Farrish's case, 63 Ala. 164; Duval's case, Ib. 12. But the statute does not deprive the court of the right to simplify or explain charges tending to mislead the jury.-Morris's ease, 25 Ala. 57; Eiland's case, 52 Ala. 322; Turbeville's case, 40 Ala. 715; Hogg's case, 52 Ala. 2. If charge merely tends to mislead, party objecting should ask explanatory charges.-Evans's case, 62 Ala. 6; Eiland's case, 52, Ala. 322; Diggs's case, 49 Ala. 311; Scully's case, 39 Ala. 240; Wills's case, 74 Ala. 21; Williams's case, Ib. 18. Charges to be construed in connection with the general charge and other charges given.-Cunningham's case, 73 Ala. 51; Scott's case, 37 Ala. 117. Statute applies only to written charges.Warren's case, 46 Ala. 549; Jacobson's case, 55 Ala. 151; Richardson's case, 54 Ala. 158. Record need not show charges indorsed "given" or "refused;" when presumed.-Allen's case, 74 Ala. 557. When charge presumed to have been in writing; when made part of record; when not.-Little's case, 58 Ala. 265. Formerly, where there was, by bill of exceptions, no question of law reserved for review, appeal was dismissed.-Howell's case, 110 Ala. 23 (20 So. 449); Bond's case, 103 Ala. 90 (15 So. 893). Judgment as follows: "Guilty, fined $50.00, judgment confessed," will not support appeal.-Wright's case, 103 Ala. 95 (15 So. 506); Nichol's case, 100 Ala. 23 (14 So. 539). Defendant, cannot be discharged on habeas corpus because transcript for appeal is not filed, before time has expired for signing bill of exceptions.-Ex parte Cameron, 81 Ala. 87 (1 So. 20). If question does not distinctly appear of record, it must be reserved by bill of exceptions.-Bolling's case, 78 Ala. 469. Bill of exceptions is not part of record, and parts of record shown by it alone will not be reviewed.—Diggs's case, 77 Ala. 68. Rulings on demurrer cannot be shown by bill of exceptions only.-Powell's case, 89 Ala. 172 (8 So. 109). Appellate court will not correct error in sentence, even by agreement or consent.-Herrington's case, 87 Ala. 1 (5 So. 831); Zaner's case, 90 Ala. 657 (8 So. 698). Sentence for longer time than allowed by law for costs will be corrected on appeal.-Johnson's case, 94 Ala. 35 (10 So. 667). Original papers not sent up by order of judge will not be considered on appeal.-Gardner's case, 96 Ala, 12 (11 So. 402). Judgment entry, when controls bills of exceptions.Childs's case, 97 Ala. 49 (12 So. 441). Conviction without plea is erroneousrecord must affirmatively show plea.-Childs's case, 97 Ala. 49 (12 So. 441); Bowen's case, 98 Ala. 83 (12 So. 808); Jackson's case, 91 Ala. 55 (8 So. 773). Presumptions are indulged in favor of lower court's rulings.-Ryan's case, 100 Ala. 105 (14 So. 766); Jackson's case, 97 Ala. 65 (12 So. 243); Garrett's case, 97 Ala. 18 (14 So. 327). Motion in arrest of judgment founded on bill of exceptions only will not be reviewed.-Walker's case, 91 Ala. 76 (9 So. 87). Errors as to costs only will be corrected on appeal.-Bazell's case, 89 Ala. 14 (8 So. 22). Defective transcripts may be disallowed.-Foster's case, 88 Ala. 182 (7 So. 185). Where the lower court tries the facts, its finding thereon will not be revised on appeal.-Wynn's case, 87 Ala. 137 (6 So. 391); Boyd's case, 88 Ala. 170 (7 So. 268). But if evidence is without conflict, it may.-Giles's case, 88 Ala. 230 (7 So. 271). What orders of the court in the trial of felonies must appear of record, and what not.-Washington's case, 81 Ala. 35 (1 So. 18). Refusal of motion for new trial not revisable on appeal.-Johnson's case, 87 Ala. 39 (6 So. 400); Cooper's case, 88 Ala. 107 (7 So. 47); Daniel's case, 88 Ala. 220 (7 So. 337); Jolly's case, 94 Ala. 19 (10 So. 606); Reeves's case, 95 Ala. 31 (11 So. 158); Hawthorn's case, 100 Ala. 26 (14 So. 768); 19-AC-VOL. III

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Knight's case, 103 Ala. 48 (16 So. 7); Lowry's case, Ib. 50 (15 So. 641); Jones's case, 104 Ala. 30 (16 So. 135). Application for continuance not revisable on appeal, unless gross abuse.-Davis's case, 92 Ala. 20 (9 So. 616). Objections to indictment for misnomer or like cannot be considered for first time on appeal.-Welsh's case, 96 Ala. 92 (11 So. 450).

6244. (4313) Defendant may appeal from judgment of conviction.-Any person convicted of a criminal offense in the circuit court, or other court from which an appeal lies directly to the supreme court, may appeal from the judgment of conviction to the supreme court.

Does not lie until after final judgment on verdict; dismissed if prematurely taken.-Gore's case, 58 Ala. 391; Lee's case, 52 Ala. 321; Thomason's case, 70 Ala. 20. See Reece's case, Minor, 266; Harkins's case, 6 Ala. 57. Nor will appeal lie while motion for new trial pending.-Overton's case, 60 Ala. 73. Nor from order holding accused to answer an indictment.-May's case, 55 Ala. 164. Nor when defendant escaped; proceedings in such case.-Warwick's case, 73 Ala. 486 (overruling Parsons's case, 22 Ala. 50). All legitimate presumptions indulged in favor of primary court.-Childs's case, 58 Ala. 349; Mack's case, 63 Ala. 138; Green's case, 73 Ala. 26. When case stricken from docket of supreme court for want of jurisdiction.-Brigman's case, 46 Ala. 72. When decisions of United States supreme court binding.-Green's case, 73 Ala. 26. Void judgment will not support an appeal.-Howell's case, 110 Ala. 23 (20 So. 449); Bond's case, 103 Ala. 90 (15 So. 893); Wright's case, 103 Ala. 95 (15 So. 506); Nichol's case, 100 Ala. 23 (14 So. 539). Formerly, when no question of law had been reserved, revision of judgment could be obtained only by writ of error.-Ex parte Knight, 61 Ala. 382; Taylor's case, 112 Ala, 69 (20 So. 849). An appeal does not lie from a mere order sentencing the defendant.to death.-Allen v. State, 141 Ala. 35 (37 So. 393).

6245. (4314) Appeal in habeas corpus cases.-Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court; and when, on habeas corpus, any person held in custody under a charge or conviction for crime, or for extradition as a fugitive from justice of another state, is discharged from such custody; or when any person held in custody under an indictment by a grand jury charging him with a capital offense is admitted to bail, the solicitor or other prosecuting officer or attorney may take an appeal in behalf of the state to the supreme court; and in such cases the judgment must be suspended pending the appeal; but, except in capital cases, the party may give bail, with sufficient sureties, conditioned that he will appear before such court or officer as may be prescribed by the judge or chancellor, and abide the judgment rendered. When an appeal is taken under this section, the clerk of the court in which the record of the judgment appealed from may be, must transmit without delay a transcript of the record and certificate of appeal to the supreme court.

Statute does not authorize appeal by members of the Alabama National Guard from a judgment discharging on habeas corpus for violation of military laws.—Burr v. Foster, 132 Ala. 41 (31 So. 495). Statute does not apply to cases where petitioner was committed to jail by committing magistrate on

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affidavit and warrant charging him with murder. State v. Berkstresser, 137 Ala. 109 (34 So. 686). There must be a certificate of appeal or verified petitions to support an appeal.-Ex parte Rutledge, 118 Ala. 651 (24 So. 1004). Writ of error can only be awarded on a judgment and for some error apparent on the record; denying prayer for discharge or discharging on habeas corpus is not such judgment; this can only be reviewed on appeal.—Ex parte Smotherman, 140 Ala. 168 (37 So. 376). This section is constitutional, though inserted by the Code commissioner and not predicated upon a statute.-Towery v. State, 143 Ala. 59 (39 So. 310). Right of appeal in habeas corpus where prisoner is held under extradition proceedings.—Barriere v. State, 142 Ala. 72 (39 So. 55). Where right of appeal is given it is usually the exclusive remedy.-Ex parte Bettis, 142 Ala. 68 (37 So. 640). Right of city or town to appeal from habeas corpus proceedings.-Town of Elba v. Rhodes, 142 Ala. 689 (38 So. 807). Order setting aside former order allowing the bill under petition or habeas corpus will not support appeal.-Carwile v. State, 39 So. 1024.

6246. (4315) (4515) Appeal by state when statute declared unconstitutional.-In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the solicitor may take an appeal in behalf of the state to the supreme court, which appeal shall be certified as other appeals in criminal cases; and the clerk must transmit without delay a transcript of the record and certificate of appeal to the supreme court.

(Dec. 8, 1880, p. 65.) An indictment is an accusation by a grand jury; an information is an accusation of crime made by an authorized public officer. -State v. Hewlett, 124 Ala. 471 (27 So. 18). Appeal does not lie from police and justice's court; appeal must be taken by solicitor.-State v. Hewlett, 124 Ala. 471 (27 So. 18). Declaring the charter of a municipal corporation unconstitutional does not authorize an appeal by the state; it is only an act of the legislature under which the indictment or information is preferred that authorizes it. Harold v. State, 128 Ala. 39 (29 So. 592). Supreme court limited to consideration and decision of constitutionality of statute.-State v. Street, 117 Ala. 203 (23 So. 807). Bauerman's case, 72 Ala. 252; Leach's case, 75 Ala. 36; Agee's case, 83 Ala. 110 (3 So. 856); Harrub's case, 95 Ala. 176 (10 So. 752). Statute does not warrant an appeal by the state from a judgment in a criminal case which holds that the act creating the court in which prosecution is instituted to be unconstitutional.-State v. Morris, 39 So. 589.

6247. (4316) Limitation of appeals.-Appeals under this chapter, when taken from a judgment of conviction for an offense, must be taken within one year, and in all other cases within thirty days, from the rendition of the judgment.

6248. (4317) Bills of exception.-The provisions of this Code relating to the time and manner of taking, signing, and establishing bills of exceptions in civil causes apply to criminal cases, so far as applicable.

Ex parte Cameron, 81 Ala. 87 (1 So. 20).

6249. (4318) (4511) (4980) (4304) (753) In case of felony, judgment rendered and execution suspended pending appeal.— When any question of law is reserved in case of a felony, and it shall be made known to the court that the defendant desires to

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take an appeal to the supreme court, judgment must be rendered against the defendant, but the execution thereof must be suspended pending the appeal, and the defendant held in custody.

(Mar. 7, 1876, p. 178.) Statute does not interfere with finality of judg ment or its validity; this does not depend upon an affirmance or reversal, the statute prevents the enforcement pending an appeal.-Viberg v. State, 138 Ala. 100 (35 So. 53). Nothing but an order of the court which has imposed a sentence can for any purpose suspend its execution.-White v. State, 134 Ala. 197 (32 So. 320). For a history and a genesis of this section, see White v. State, 134 Ala. 197 (32 So. 320). Only the court which renders a judgment or a sentence can suspend its execution.-Ib. Duty of clerk when sentence suspended; if point reserved is question of law no bill of exceptions is necessary; defendant cannot be discharged on habeas corpus because transcript not filed.-Ex parte Cameron, 81 Ala. 87 (1 So. 20). In the absence of an order of suspension, sentence goes into immediate operation.-Ex parte Goucher, 103 Ala. 305 (15 So. 601). Two remedies available to defendant to revise judgment; one by writ of error; the other by statutory appeal. If as to matter of law apparent of record, by common law writ of error which is grantable by the supreme court in term time or by a judge of the supreme court in vacation; if he desire to revise matter not appearing of record, that question whether of law or fact, must be presented by bill of exceptions, and the reservation must be distinctly shown.-Ex parte Knight, 61 Ala. 482. What constitutes reservation of question for consideration of appellate court.-Ex parte Knight, 61 Ala. 482.

6250. (4319) (4512) (4981) (4305) (754) In case of misdemeanor judgment rendered, execution thereof suspended and defendant bailed or held in custody.-When such question is reserved in case of a misdemeanor, and it shall be made known to the court that the defendant desires to take an appeal to the supreme court, judgment must be rendered on the conviction, but the execution thereof must be suspended pending the appeal. In such case the defendant may give bail, with sufficient sureties, conditioned that he will appear and abide the judgment; and failing to give such bail, he must be committed to jail, but may give such bail at any time pending the appeal.

(Mar. 7, 1876, p. 178.) Judgments imposing hard labor for payment of costs should specify the amount of costs and the number of days to serve for payment, but a failure so to do does not make the judgment void.-Walker v. State, 58 Ala. 393. No appeal can be taken when record shows no judgment.— Thomason v. State, 70 Ala. 20. What will discharge bail and how pleaded.Williams's case, 55 Ala. 71.

6251. (4320) Defendant may confess judgment for fine and costs with stay of execution, etc.-In the case of a misdemeanor the defendant may confess judgment, with sufficient sureties, for a fine and costs as if no appeal was taken, but execution thereon must be suspended pending the appeal; and if the judgment of conviction is reversed the confessed judgment is thereby vacated; but if the judgment of conviction is affirmed, or the appeal is dismissed, execution on such confessed judgment may issue at once. Such confession of judg