
    Marcellus Rhinehart v. State.
    
      (Nashville.
    
    December Term, 1909.)
    1. BILL OP EXCEPTION'S. Time for preparing1 may be allowed not to exceed thirty days after the adjournment.
    The former rule of law that a bill of exceptions filed after the close of the term at which the case was tried came too late and could not be considered as a part of the record was modified by statute (Acts 1899, ch. 275, sec. 1) authorizing the trial judge or chancellor, in his discretion, in all cases of appeal from trial courts to the supreme court, to allow the parties time in which to prepare a bill of exceptions, not to exceed thirty days after the adjournment. (Post, pp. 700, 701.)
    Acts cited and construed: Acts 1899, ch. 275, sec. 1.
    Cases cited and approved: Clark v.'Lary, 3 Sneed, 77; McGavock v. Puryear, 6 Cold., S4; Jones v. Burch, 3 Lea, 747; Sims v. State, 4 Lea, 359; Patterson v. Patterson, 89 Tenn., 151; Ballard v. Railroad, 94 Tenn., 205; Bettis v. State, 103 Tenn., 339.
    2. SAME. Same. Continuance of motion for new trial to the next term does not carry the whole case over into the next term so as to authorize thereat a bill of exceptions to be signed and filed; rule not changed by statute.
    The continuance of a motion for a new trial from the trial term to the succeeding term of the court does not authorize the preparation and filing of a bill' of exceptions within the extension of thirty days’ time granted by the court upon overruling such motion at the next term. Such continuance of the motion for a new trial does not carry the whole case over into the next term so as to authorize thereat such extension of time, and the preparation, signing, and filing of a bill of exceptions within such extension. This rule is riot affected or modified by a statute (Acts 1899, ch. 40) providing that whenever a case is pending and on trial by court or jury, undetermined when the term expires, on account of time and the arrival of the succeeding term, the term shall he extended and continued into such succeeding term for all the purposes of trying, disposing of and returning verdict,, and rendering judgment in such case so pending and on trial, the same as if such new term had not arrived. (Post, pp. 701-703.)
    Acts cited and construed: Acts 1899, ch. 40.
    Cases cited and distinguished: Railroad v. Simmons, 107 Tenn., 392; Ray v. State, 108 Tenn.; 282.
    FROM MONTGOMERY.
    Appeal in error from the Criminal Court of Montgomery County. — C. W. Tyler, Judge.
    F. G. Gilbert, J. E. Justice, J. D. Tyler, and W. D. Howser, for Rkinebart.
    Attorney-General Cates, for State.
   Mr. Chief Justice Beard

delivered the opinion of the Court.

The plaintiff in error having been found guilty of murder in the first degree, in the killing of Rufus Hunter, has brought the record to this court for review. The trial took place at the June term, 1909, of the criminal court of Montgomery county, the jury returning their verdict on the 17th of July. On that day a motion for a new trial was entered, and on the 12th of August following a minute entry was made showing that the future hearing of this motion was continued until the next term of the court. On the following day, to wit, on the 13th day of August, there was a final adjournment of the June term of the court. The August term began on the 3d Monday of August, 1909, this being the 16th day of the month. The record shows that on Augrnst 19th the motion for a new trial was overruled, and 30 days were granted by the court for the preparation and filing of a bill of exceptions. Acting under this leave, the counsel for plaintiff in error prepared a paper purporting to be a bill of exceptions, which, being signed by the trial judge, was noted as filed on the 13th of September, 1909. Under these conditions, have we anything before us save the technical record? Can this paper, styled a “bill of exceptions,” be treated as such by this court?

It was long the settled law of this State that a bill of exceptions filed after the close of the term at which the case was tried came too late and could not be considered a part of the record. McGavock v. Puryear, 6 Cold., 34; Clark v. Lary, 3 Sneed, 77; Jones v. Burch, 3 Lea., 747; Sims v. State, 4 Lea., 359; Patterson v. Patterson, 89 Tenn., 151, 14 S. W., 485; Ballard v. Railroad, 94 Tenn., 205, 28 S. W., 1088; Bettis v. State, 103 Tenn,, 339, 52 S. W., 1071.

This rule was modified, however, by chapter 275 of the Session Acts of 1899, by the first section of which it was provided that in all cases of appeal from trial courts to the supreme court “the judge or chancellor may in his discretion allow the parties time in which to prepare a hill of exceptions, not to exceed thirty days after the adjournment.” In the Bettis Case, supra, this court, recognizing the long-established rule and its modification by this statute, held that the hill of exceptions, filed after the expiration of the extension given by the trial judge, could not be used as a part of the record.. In that case there was an affirmance of the judgment of the trial court, pronounced on a verdict of guilty of murder in the second degree, with punishment fixed at confinement in the penitentiary for a term of ten years.

It is insisted, however, that inasmuch as the motion for a new trial in the case at bar was continued from the trial term to the succeeding term of the court, this carried over the whole case, with the right to file a bill of exceptions within the extension granted by the court. This insistence is rested on chapter 40 of the Acts of 1899, as construed by this court in Railroad v. Simmons, 107 Tenn., 392, 64 S. W., 705, and Ray v. State, 108 Tenn., 282, 67 S. W., 553. This statute provides that, “whenever in the courts of this State any case is pending and on trial by court or jury- undetermined at the time the term at which it is pending expires, on account of time and on account of the arrival of the succeeding term, the term shall be extended and continued into such succeeding term for all the purposes of trying, disposing of and returning verdict, and rendering judgment in such case so pending, and on trial the same as if such new term had not arrived.” This statute was passed with no such case in view as we have here, nor does it fall within either its letter or spirit. The legislature, realizing the fact that, with increasingly crowded dockets in the lower court, a cause might be on trial when the day was reached for the adjournment of the court, with a view to the holding of a term of another court, over which the trial judge presided, to avoid the loss of time and labor consumed in such a trial, provided simply that such a cause might be projected into this succeeding term to be finally disposed of. The first of the above cases was tried in the circuit court of Madison county, and the motion for a new trial was made on October 12th, and there not being sufficient time to dispose of this motion it was held under advisement until October 16th, when it was overruled, the appeal prayed and granted, and thirty days allowed to file a bill of exceptions. Under the statute the fall term of the circuit court of Chester county began on the third Monday in October, which was October 15th. The insistence in this court was that the motion for a new trial having been disposed of, the appeal granted, and the extension given for filing a bill of exceptions, after the day on which the Chester circuit court should have convened, these various acts were coram non judice. This contention, however, was held to be unsound, and the case within the saving of the statute set out just above. In that case, however, unlike the present case, there was no final adjournment of tbe trial term, but simply a carrying oyer of tbe motion for a new trial beyond tbe day prescribed by law for tbe opening of tbe court in Chester county, and it was beld that this was witbin tbe spirit of tbe statute. Tbe same conditions, but more distinctly set out in tbe opinion, existed in Ray v. State, supra. Neither of these cases support tbe insistence of counsel for plaintiff in error.

Notwithstanding, under this bolding, there is no bill of exceptions in tbe record, yet we haye examined carefully tbe paper purporting to be such, and we haye no doubt that tbe plaintiff in error, was guilty of tbe felony charged against him. Tbe murder of Rufus Hunter, wanton, unprovoked, and unjustifiable, was a crime, not only against the law of tbe land, but against civilization as well.

It follows that tbe judgment of tbe lower court is affirmed.  