This cause is here submitted on motion and on merits. The motion is by the state and is to strike the bill of exceptions upon the grounds that it was not presented or filed within 90 days from the date of. the judgment. Said motion is as follows:
. “Comes the appellee, acting in the premises by and through the Attorney General, and moves the court to strike the bill of exceptions in the above styled cause, and as grounds therefor assigns the following:
“1. That as appears from the transcript on file in this honorable court, the defendant was tried and judgment of sentence duly made and entered on, to-wit, the third day of August, 1937; that his bill of exceptions Was presented to the presiding judge of the said court, the' Hon. Robert • M. Hill, on the fourth day of November, 1937; that same was not filed in the office of the clerk nor was any other presentation made thereof until after the expiration of ninety days from the date of judgment.
“2. That the Local Acts of 1931, page 72 et seq., governing the procedure in said court, provides in substance that rules of procedure therein shall be the same as is provided by law for rules of procedure in the circuit courts of the state. That inasmuch as the bill of exceptions in said cause was tendered more than ninety days after the date'of judgment and sentence, — there being no intervening motion for new trial or other interlocutory proceedings which would suspend the operation of the statute, that the same ought not to be considered by this honorable court on this appeal.
“Wherefore, movant prays that the judgment may be here entered striking the said bill of exceptions from the said file, and affirming said cause.”
The statute, section 6433 of the 1923 Code of Alabama, provides : “Bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards.”
Section 6434, Code 1923, provides: .
“The appellate court may strike a bill of exceptions from the record or file because not presented or signed within the time required by law, but shall not do so ex mero motu, but only on motion of a party to the record or his attorney.”
Upon examination of this record, we find it affirmatively appears that the bill of exceptions was presented to the trial judge 96 days from the day on which the judgment in this case was entered.
. The motion of appellee, supra, having been seasonably made and filed in this court upon the submission of the cause, must prevail.
The motion is granted, and the bill of exceptions is hereby stricken. •
No error being apparent on the record proper, the judgment of conviction from which this" appeal was taken will stand affirmed.
Motion granted.
Affirmed.