#### Flake v. The State.

*Assault and Battery.*

(Decided June 3, 1911.

56 South. 47.)

1. *Bill of Exceptions; Establishment.*— Under section 3022, Code 1907, this court has a discretion whether it will establish a bill of exceptions filed within a year after the judgment, but not at the first call of the division, to which the case is returnable.

2. *Same.*— Where the accused was convicted on November 11, and the term of the judge who tried him expired Nov. 16, and the next call of the division to which the case was returnable was on Nov. 21, and the bill was not signed by the judge trying the cause, and the application to establish the bill of exceptions was not filed at the first call of the division, but was filed at the succeeding term and within one year after the judgment or the expiration of the term of office of the judge, the application to establish such bill of exception was filed in time under section 3022, Code 1907.

3. *Homicide; Assault With Intent to Murder; Burden of*Proof.— Since the burden is on the state in a trial of an assault with intent to murder to show that the defendant was the aggressor, it was error to instruct that the burden was on the defendant to show the necessity, real or apparent, for striking to protect his life or person *135from great bodily harm, and that before striking, he had no opportunity to retreat without increasing his danger, real or apparent, and that he was free from fault in bringing on the difficulty.

Appeal from Lee Law and Equity Court.

Heard before Hon. A. E. Barnett.

Addison Flake was indicted for an assault with intent to murder and convicted of an assault and battery, and he appeals.

Reversed and remanded.

■ Barnes & Denson, for appellant.

Counsel insist that under the facts in this case, the application to establish the bill of exceptions was filed in accordance with the statute, and in time, and that the bill of exceptions as presented should be established. — Sec. 3022, Code 1907. They further insist that the court erred in its oral charge to the jury as to the burden of *proof.*— Cleveland *v. The State,*86 Ala. 1; *Gibson v. The State,*89 Ala. 121; *Keith v. The State,*97 Ala. 32; *Wilkins v. The*State, 98 Ala. 1; *Holmes v. The State,*100 Ala. 80; *McCormack v. The State,*102 Ala. 156; *Dent v. The State,*105 Ala. 14; *Morris v. McClellan,*154 Ala. 639; *MoBryde vy The State,*156 Ala. 44.

Robert C. Bricicell, Attorney General, and William L. Martin, Assistant Attorney General, for the State.

Counsel insist that the application should have been made at the first call of the division next after the trial of the cause, and expiration of the judge’s term, and it not having been so filed, the application came too late, and the court should decline to establish the bill of exceptions. — Sec. 3022. Counsel agree that if the bill of exceptions is established that the court erred in its oral charge as to the burden of proof, and in support of such admissions cite the cases cited by appellant and several other cases.

*136did GRAFFENRIED, J.

The defendant was indicted' for assault with intent to murder, was tried and convicted of an assault and battery, and appeals.

The trial'was had on the'11th day of November, 1910,. and the term of office of the judge who presided at the-trial expired on the 16th day of November, 1910, and the next call of the division in the Supreme Court to-which the counnty belonged was regularly had on November 21, 1910, five days after the expiration of the term of office of the presding judge and ten days after-the judgment of conviction.

Section 3019 of the Code of 1907 provides that a bill of exceptions may be presented to the judge who presided at the trial at any time within 90 days after the rendition of. the judgment. Section 3022 of the Code provides that if the judge dies, resigns, or is impeached, or-his term of office expires, or from other good cause he-does not sign a bill of exceptions duly presented to htm within the proper time, the bill of exceptions may be-established in the Supreme Court, but the application-to establish the same must be filed on or before the call of the next division of said court of the causes of the-county in which the case was tried, after such death, resignation, impeachment, or expiration of the term of office of such presiding judge, provided that in no case-can such application be filed after one year from the-rendition of such judgment. In the present case, the-bill of exceptions was not signed by the presiding judge-before the expiration of his term of office, and no application to establish a bill of exceptions was filed at the-first call of the division of the Supreme Court of the-causes of the county in which the conviction was had. next after the expiration of the term of office of the presiding judge, but was filed at the succeeding call of said-. *137division and within less than 12 months after the expiration of the term of office of said judge.

It is contended on behalf of the state that the application to establish the bill of exceptions in this case, not having been filed at the first call of the division of the Supreme Court, but at the second call of said division after the expiration of the term of office of the presiding judge, comes too late. The statutes relative to the presentation and the signing of bills of exceptions and their establishment, when not signed,-by appropriate applications to the Supreme Court, should be construed as a whole, for they relate to the same subject-matter, and they should be so construed and enforced us to give effect to the legislative purpose -which called them into existence. The right of appeal is too firmly imbedded in our civil and criminal jurisprudence, and has been too carefully preserved and amplified by legislative enactment, for us to place upon this staute the rigid construction asked of us by legal representatives of the state. While it is the purpose of this statute to require such application, unless there is good cause shown for not so doing, to be filed at the first call of the division of the Supreme Court to which the county belongs next after the expiration of the term of office of the judge presiding at the trial, nevertheless the mandatory provision that such application shall be made within one year after' the rendition of the judgment clearly evinces the legislative purpose to lodge in the Supreme Court a discretion, to be exercised in accordance with the requirements of justice under the facts of each particular case, as to whether it will establish a bill of exceptions upon proper proof, filed within a year-after the rendition of the judgment, but not at the first; call of the division of the court to which the county be'-. *138longed after such expiration of the term of such presiding judge. There are two calls of each division of the Supreme Court each year, and the statute was enacted in the light of that fact, to the end that, if, for any good and sufficient reason under the conditions existing in a particular case, the application was not filed at the first call next after the expiration of said term of office, the Supreme Court should have the power, under the laAV, upon proper proof, to establish the bill of exceptions.

In the present case, as above stated, the division of the Supreme Court to which the county in which this trial was had belonged was called within ten days after the rendition of the judgment and five days after the term of office of the presiding judge expired. We do not, therefore, feel that the appellant, in the matter of the filing of his application for the establishment of his bill of exceptions, was guilty of such laches as to be penalized hv the refusal of this court to consider it, and as it does not appear that the delay has been of injury to the state we hold that, under the circumstances of this case, the application was not unseasonably made.

The proof submitted upon the motion to establish the bill of exceptions shows, without conflict, that it is correct, and the motion of appellant to establish his bill of exceptions is granted.

The evidence for the state tended to show that the defendant made an unprovoked assault upon one Ed Dowdell, cutting him Avith a knife and inflicting a dangerous wound; while the evidence for the defendant tended to show that he, without fault on his part, was assaulted by Ed Dowdell with a stick, and that “as Ed Dowdell’s stick came down the defendant made some motion, and seeémed to grab at said Dowdell, and *139caught his arm,” and that the difficulty then terminated. Thereupon the court gave to the jury the following oral charge: “On the plea of self-defense interposed by the defendant, there are three propositions for you to consider: First, the necessity, either real or apparent, for the defendant to strike to protect his life or his person from great bodily harm; second, whether the defendant, before striking the blow, had the opportunity to retreat, without increasing his danger, either real of apparent; third, whether the defendant was free from fault in bringing on the difficulty, and on all three of these propositions the burden of proof is on the defendant.” The defendant excepted to that part of said charge which declared that the burden of proof, on all three of said propositions, is on the defendant. That the court committed reversible error in giving the above charge is apparent. The burden was not on the defendant, but on the state, to prove that the defendant was the aggressor, or provoked the *difficulty.*—Holmes *v. State,*100 Ala. 80, 14 South. 864; *Gibson v. State,*89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96; *Webb v. State,*100 Ala. 52, 14 South. 865.

For the error pointed out, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.