McCullers v. State, 26 Ala. App. 314, 159 So. 273. A party has a right to interrupt or arrest the testimony of a witness to interpose an objection or motions to exclude. Dennison v. State, 17 Ala. App. 674, 88 So. 211; Eason v. State, 22 Ala. App. 424, 116 So. 409; 70 C.J. 491. Events, statements and acts which occur after the fatal difficulty are not admissible as part of the res gestae of the fatal difficulty, unless it is in continuance of the difficulty. Pelham v. State, 23 Ala. App. 359, 125 So. 688; State v. Stallings, 142 Ala. 112, 38 So. 261; Stewart v. State, 78 Ala. 436; Greenwood v. State, 19 Ala. App. 635, 99 So. 825; Thomas v. State, 18 Ala. App. 268, 90 So. 878; Lundsford v. State, 2 Ala. App. 38, 56 So. 89; Montgomery v. State, 17 Ala. App. 469, 86 So. 132; Allsup v. State, 15 Ala. App. 121, 72 So. 599. Recent return of deceased from combat area with United States Army is immaterial, irrelevant and highly prejudicial.
Hughes v. Albertville Mer. Co., 173 Ala. 559, 560, 56 So. 120. If the bill of exceptions sought to be established differs substantially from the one presented to the trial court, motion to establish will be overruled. Bradberry v. State, 168 Ala. 141, 53 So. 266. Where the bill sought to be established is replete with corrections, and interlineations materially change the facts, it will not be established. Eason v. State, 22 Ala. App. 424, 116 So. 409; Fries v. Acme White Lead Color Works, 18 Ala. App. 80, 89 So. 842. Failure to have the bill presented or signed within the time cannot be waived or consented to except by a failure to move to strike. Ettore v. State, 214 Ala. 99, 106 So. 508. The bill of exceptions is a judge-made record, he is subjected to statutory denunciation for failure to act correctly, and attorneys cannot agree or consent so as to bind him. Padgett v. Gulfport Fert. Co., 11 Ala. App. 366, 66 So. 866. On motion to strike bill not signed within time, the appellate court will not inquire into the reason for or circumstances of the judge's failure to sign.
Lange, Simpson Brantley, of Birmingham, for appellee. Where the trial judge is still in official existence and could legally approve bill of exceptions but fails or refuses after same has been presented to him, the remedy for establishing the bill is under Code 1923, ยง 6435, and not under section 6436. Sovereign Camp v. Ward, 200 Ala. 19, 75 So. 331; Hale v. Worthington, 210 Ala. 544, 98 So. 784; Fries v. Acme Co., 18 Ala. App. 80, 89 So. 842; Jaffe v. Leatherman, 221 Ala. 178, 128 So. 449. Statute permitting establishment of bill of exceptions in appellate court is penal in its nature and strict compliance with its requirements is necessary. Eason v. State, 22 Ala. App. 424, 116 So. 409; Thompson v. Manufacturers' F. A. Corp., 25 Ala. App. 70, 150 So. 174. KNIGHT, Justice.
Thompson v. Manufacturers' Finance Acceptance Corp., 25 Ala. App. 70, 150 So. 174, supra; Bradberry v. State, 168 Ala. 141, 53 So. 266, 1 H.N.; Haden v. Brown, 22 Ala. 572, 1 2 H.N's.; Stein v. McArdle Waters, 25 Ala. 561 (Indirect); Hale v. Goodbar, White Co., 81 Ala. 108, 2 So. 467; Washburn v. Johnson Bros. Co., 16 Ala. App. 662, 81 So. 136, only 1 H.N. Application to establish a bill of exceptions, under conditions here obtaining, is penal in its nature, and strict compliance with its requirements is necessary. Eason v. State, 22 Ala. App. 424, 116 So. 409, 3 H.N.; Browning v. Lockett, supra; Thompson v. Manufacturers' Finance Corp. 2 H.N., supra; McRee v. Russell, 236 Ala. 506, 183 So. 399, 2 H.N.; Bradberry v. State, 168 Ala. 141, 53 So. 266, 1 H.N. In order to put the Judge in default for a failure or refusal to sign, so as to enable the aggrieved party to establish one, it must appear that a correct bill was tendered.
The facts set up in the motion show that it could not be intended as a proceeding under the provisions of section 6436 of the Code. See Sovereign Camp, W. O. W., v. Ward, 200 Ala. 19, 75 So. 331, where the distinction between the two sections is pointed out. Also see Eason v. State, 22 Ala. App. 424, 116 So. 409, and Fries v. Acme White Lead Color Works, 18 Ala. App. 80, 89 So. 842. It would seem, and we hold, that when motion is made, as here, to establish a bill of exceptions under the provisions of Code 1923, ยง 6435, the motion must be accompanied by satisfactory evidence of its truth, before any action will be taken by this court.
An analogous situation appears in the case of Rogers v. State, 4 Ala. App. 677, reported in full in 58 So. 755. The court in said case overruled the motion, as it was not supported by evidence as is required by sections 3021 and 3022 of the Code of 1907, and Supreme Court Rule 40. Sections 3021 and 3022, Code of 1907, are carried forward as sections 6435 and 6436 of the Code of 1923. A reference to the original record in the Rogers Case (Alabama Appellate Reports, Vol. 42, November Term 1911-1912, 6th Div. 195) shows a like situation to the instant case. The motion in the instant case is overruled, as there is no evidence to support same. Rogers v. State, supra. See, also, Eason v. State, 22 Ala. App. 424, 116 So. 409. The record proper being in due form, the judgment appealed from is affirmed.
In this case we find that this has not been done, and section 6435 of the Code of 1923, under which this motion is filed, being highly penal, we must hold the appellant to the letter of the statute. Particular attention is directed to the following authorities: Eason v. State, 22 Ala. App. 424, 116 So. 409; Finney v. Sullivan, 22 Ala. App. 130, 113 So. 472; Sovereign Camp, W. O. W. v. Ward, 200 Ala. 19, 75 So. 331; Fries v. Acme W. L. C. Works, 18 Ala. App. 80, 89 So. 842."
In this case we find that this has not been done, and section 6435 of the Code of 1923, under which this motion is filed, being highly penal, we must hold the appellant to the letter of the statute. Particular attention is directed to the following authorities; Eason v. State, 22 Ala. App. 424, 116 So. 409: Finney v. Sullivan, 22 Ala. App. 130, 113 So. 472; Sovereign Camp W. O. W. v. Ward, 200 Ala. 19, 75 So. 331; Fries v. Acme W. L. C. Works, 18 Ala. App. 80, 89 So. 842. The motion is overruled.