There is an absence of averment in the motion that the judgment of the circuit court as it appeared on the minutes of the court is not properly transcribed in the record here. If this is true, it would be necessary to set aside the judgment of reversal, and the submission, and allow time for making a motion in the trial court to amend the judgment nunc pro tunc, so as to incorporate in the judgment the alleged true verdict.
While the alleged clerical error in the record should have been noticed and corrected before submission of the case, nevertheless the court would be inclined to grant the motion if the insufficiency of the verdict was the only error on which the case was reversed.
The Attorney General, however, insists that the bill of exceptions does not purport to set out all the evidence; therefore, the court should presume that evidence was admitted that cured the error of the court in excluding the items of evidence, and a number of decisions of the Court of Appeals so holding is cited.
This identical question was reviewed in Liberty Nat. Life Ins. Co. v. Collier et al., 228 Ala. 3, 154 So. 118, where such ruling of the Court of Appeals was reversed.
The question is governed by Rule 32 of Circuit Court Practice, which provides:
"Bills of exceptions taken in trials before a jury shall not contain a statement of the testimony, nor of any portion thereof, in extenso, except in one of the following cases: *Page 389
"(1) When the general charge is asked in good faith, to be judged of by this court.
"(2) When the inquiry questions the legality or pertinency of a question to a witness, or his answer; in which case, enoughof the testimony, or the tendencies of the testimony, may bestated, to show the legality or pertinency of the question or answer, or to show the contrary." (Italics supplied.)
The rules and principles of the law of evidence applicable to civil proceedings are also applicable to criminal trials, except as to the burden and quantum of proof. Ex parte Messer,228 Ala. 16, 152 So. 244, and cases therein cited.
The motion of the State to set aside the judgment of reversal is therefore due to be denied. It is so ordered by the court.
Motion denied.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.