Meadows v. State, 182 Ala. 51, 62 So. 737. Charges which are given or refused must be signed by the trial judge. Code 1940, Tit. 7, § 273; Mason v. State, 16 Ala. App. 405, 78 So. 321. The statute under which defendant is being compelled to secure a certificate is discriminatory against chiropractors and the profession of chiropractic, and is unconstitutional.
What appear in the record proper as special charges were not, so far as anything appearing in the record, authoritatively indorsed "refused" or "given" by the trial judge, as required by the statute, and the mere statement of the clerk to this effect is not authorized by the statute. Little v. State, 58 Ala. 265; Batson v. State ex rel. Davis, 216 Ala. 275, 113 So. 30; Mason v. State, 16 Ala. App. 405, 78 So. 321; Birch v. Ward, 200 Ala. 118, 75 So. 566. The record appears free from error, and the judgment must be affirmed.
In complying with this statute it is the duty of the clerk to transcribe into the record or transcript for appeal the charge and the indorsement of the judge thereon. When this is done in the order prescribed by the statute his duty is performed, and if the evidence is made a part of the record by bill of exceptions the record thus made up properly presents for review the questions raised by the given and refused charges; but without the indorsement by the trial judge on the charges they are not a part of the record and will not be considered (Mason v. State, 16 Ala. App. 405, 78 So. 321), unless made a part of the record by bill of exceptions (Ex parte Mobile Lt. R. R. Co. v. Thomas, 201 Ala. 493, 78 So. 399). A majority of the court, consisting of the Chief Justice and Justices McCLELLAN, GARDNER, and THOMAS, hold that the court did not err in overruling the defendant's motion to exclude the statement of the witness Rosa Keno that "She told me she moved there on the Saturday before the shooting took place; the shooting took place on Monday, if I make no mistake; Monday after pay day;" for the reason that only a part of this statement was hearsay, and the motion to exclude was addressed to the entire statement, a part of which was material and competent.
Having failed to comply with the statutory requisites, we cannot review the refused affirmative charge, or any other refused charges, as such are not considered as part of the record. Fendley v. State, 36 Ala. App. 149, 53 So.2d 397; Jackson v. State, 32 Ala. App. 388, 26 So.2d 423; Mason v. State, 16 Ala. App. 405, 78 So. 321. Further, by the clerk inserting the charges in the record, such does not make them a part of same, lacking the requisite endorsement of the trial judge.
The record does not show that this charge was endorsed "refused" by the trial court. It is therefore, not properly presented for review. Code 1940, Title 7, § 273; Mason v. State, 16 Ala. App. 405, 78 So. 321; Berry v. State, 231 Ala. 437, 165 So. 97. We are free to observe, however, that the evidence presented a jury question.
The fact that they are set out in the record under the endorsement of the clerk that they were refused does not authorize an extension or alteration of the rule. Title 7, § 273, Code 1940; Mason v. State, 16 Ala. App. 405, 78 So. 321; Kiker v. State 233 Ala. 448, 172 So. 290; Berry v. State, 231 Ala. 437, 165 So. 97. It is insisted in brief of counsel for appellant that the lower court was in error in admitting in evidence an alleged statement of confession made by the defendant.
The law provides charges moved for by either party must be in writing, and must be given or refused in the terms in which they were written; and it is the duty of the judge to write given or refused, as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record. As stated none of these refused charges appear to be endorsed as required by the Statute, in the absence of which this court will not consider them on appeal. Mason v. State, 16 Ala. App. 405, 78 So. 321; Little v. State, 58 Ala. 265; Batson v. State, 216 Ala. 275, 113 So. 300; Sharpley v. State, 18 Ala. App. 620, 93 So. 210; Wimberly v. State, 204 Ala. 629, 86 So. 900; Little v. State, 23 Ala. App. 547, 129 So. 99; Stinson v. State, 223 Ala. 327, 331, 135 So. 571; Freeland v. State, 28 Ala. App. 268, 270, 182 So. 414; Walters v. State, 30 Ala. App. 547, 9 So.2d 32. As stated hereinabove the evidence adduced upon the trial was in sharp and irreconcilable conflict presenting therefore a jury question; and, while the State insists it made out a strong case tending to show the guilt of the defendant as charged, still under the law the accused was entitled to a fair and impartial trial free from injurious error in the rulings of the court, for the law is, as stated by the Supreme Court, in the case of Patterson v. State, 202 Ala. 65, 68, 79 So. 459, 462:
Circumstantial evidence may afford satisfactory proof thereof, and if from the facts and circumstances adduced only a reasonable inference arises that the crime has been committed, this is sufficient to justify the admission of the confession. Ratliff v. State, 212 Ala. 410, 102 So. 621; Hill v. State, 207 Ala. 444, 93 So. 460; Patterson v. State, 202 Ala. 65, 79 So. 459; Matthews v. State, 55 Ala. 187, 195, 28 Am.Dec. 698; Mason v. State, 16 Ala. App. 405, 78 So. 321; Crofton v. State, 27 Ala. App. 589, 176 So. 832; 22 C.J.S., Criminal Law, § 839, p. 1471 et seq. The hereafter stated rule, quoted approvingly in the Ratliff case is applicable here, and controlling.
"Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'given' or 'refused,' as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record." Special written charges do not become a part of the record unless they bear the requisite endorsement of the trial judge; and not being a part of the record, this court is without authority to consider them. Richardson v. State, 22 Ala. App. 277, 114 So. 789; Mason v. State, 16 Ala. App. 405, 78 So. 321; Berry v. State, 231 Ala. 437, 165 So. 97, and cases cited. Furthermore, the oral charge of the court is not set out in the record, for this reason also, the purported refused written charges could not be considered.
Code 1923, § 9509. None of these refused charges appear to be endorsed as required by the Statute, in the absence of which this court will not consider them on appeal. Mason v. State, 16 Ala. App. 405, 78 So. 321; Little v. State, 58 Ala. 265; Batson v. State, 216 Ala. 275, 113 So. 300. It would seem that where an exception was reserved to a refusal of charges not marked and signed as required by the Statute, and incorporated in the bill of exceptions, such exception would be considered. Little v. State, 58 Ala. 265.