Mr. Chief Justice Neil
delivered the opinion of the Court.
The plaintiff in error was indicted in the criminal court of Davidson county for the violation of the age of consent law, and sentenced to five years’ confinement in the State penitentiary. He appealed to this court, and has here assigned errors. A11 of the errors assigned are based upon a writing attached to the record, relied upon by plaintiff in error and his counsel as a bill of exceptions.
The paper referred to, however, cannot be treated as a bill of exceptions, because it was not filed until after the adjournment of the term of court at which he was tried and convicted; no time having been granted by the trial judge under the statute for so filing. He was tried at the December term, 1911, on the 12th day of the month. On that day he entered a motion for a new trial, which was continued over by the court until thgnext, or Jon* [272]*272nary, term. During that term, on the 20th day of January, the motion for new trial was overruled,' arid judgment was entered against the prisoner, and thereupon he appealed to this court, and was allowed by the trial judge twenty days from January 20th to file his' Dili of exceptions. The paper relied upon for a bill of exceptions was filed February 3, 1912; that is to say, the bill of exceptions was made and filed after the adjournment of the trial term, and without any order granted during thgt term allowing time to make and file the bill. Such a bill of exceptions comes too late.
The law is:
The bill of exceptions must be made up and signed at the trial term (McGavock v. Puryear, 6 Cold., 34, and cases cited; Sims v. State, 4 Lea, 357, 359; State v. Brockwell, 16 Lea, 683, 685; and see cases cited in note 14 to Shan. Code, sec. 4693), or within such time during the term as may be prescribed by the court by special order in the particular case, or by general order regulating the subject (Hinton v. Insurance Co., 110 Tenn., 113, 72 S. W., 118; Patterson v. Patterson, 89 Tenn., 151, 154, 14 S. W., 485), or within such time after the adjournment of the term, not, exceeding thirty days, as the judge may grant, under authority of the statute on that subject (Bettis v. State, 103 Tenn., 339, 52 S. W., 1071; Rhinehart v. State, 122 Tenn., 698, 127 S. W., 445). Likewise the judge, by adjourning,.from day to day as usual, or to a day certain before final adjournment, may extend the term, when a case is on trial and uncompleted when the regular time for adjournment, [273]*273of the court by law armes, and in such a case may, as incident thereto, act on a motion for new trial, and sign a bill of exceptions before he closes the term (Street Railroad & Telegraph Companies v. Simmons, 107 Tenn., 392, 64 S. W., 705; Ray v. State, 108 Tenn., 283, 67 S. W., 553; Acts of 1899, ch. 40; Shan. Code, secs. 6056, 6057; Acts of 1835-36, ch. 5 sec. 4); but he cannot sign such bill of exceptions after he has formally adjourned! the term of the court (Rhinehart v. State, 122 Tenn., 698, 127 S. W., 445), unless within the term, by order on the minutes, time be granted, not exceeding thirty days from the date of adjournment, for the making and filing of a bill of exceptions. The reason why the bilk of exceptions must be made up and signed within the term, or within thirty days thereafter, is that with the lapse of time the impression made on the memory of thej judge becomes more faint, and his recollection less reliable as to the evidence deposed to and the incidents; of the trial, and it is the dictate of prudence as well as the policy of the law that these matters shall be written down and submitted to him while they are still safely within his grasp. Clark v. Lary, 3 Sneed, 79, 80.
The motion for new trial must be made at the trial* term, but need not be then disposed of; it may be continued to the next term and then disposed of. McGavock v. Puryear, supra, 6 Cold., 39; Williamson v. Anthony, 4 Heisk., 78; 29 Cyc., p. 1003, note 13, and other authorities. There is no necessity for waiting until the motion for new trial is acted on to make up the bill of [274]*274exceptions. If not made np pursuant to the rules already stated, the right to it is lost. If made up pursuant to these rules, and filed, it becomes a part of the record (Shan. Code, sec. 4693; Muse v. State, 106 Tenn., 181, 183, 61 S. W., 80; Railway & Light Co. v. Trawick, 118 Tenn., 273, 275, 99 N. W., 695, 10 L. R. A. [N. S.], 191, 121 Am. St. Rep., 996, 12 Ann. Cas., 532), and may be used in support of the motion for new trial, whether that be disposed of at the trial term or at a term subsequent. It may be deemed, and no doubt is generally deemed, useless labor on the part of counsel to prepare a bill of exceptions before it is known whether the trial judge will sustain the motion for new trial; but this cannot, of course, change the rule of law based on the controlling reason above set forth. If the motion for a new trial be left undisposed of at the close of the trial term, it is continued by operation of law, as part of the undisposed of business of the term, appearing on the records of the court. But this is not true of the making and filing of a bill of exceptions. This is a matter wholly outside of the record, resting still in the memory of witnesses. The bill does not become a part of the record until it is written, signed, and filed; and when this is done, it is complete. In its very nature it is a creature and incident of the trial term.
The judgment, in this State, is usually entered on the verdict when the latter is recorded on the minutes, unless a motion for new trial be made before that occurs. Greenfield v. State, 7 Baxt., 18, 19; Railroad v. Ray, 124 Tenn., 16, 134 S. W., 858, Ann. Cas., 1912D, 910. If a [275]*275motion for a new trial be made before judgment, the latter remains unentered until that motion is finally disposed of, even if that be at the succeeding or any subsequent term. The judgment on the verdict may be lawfully entered at a. subsequent term, whether the failure to enter it at the trial term be the result of mere inadvertence on the part of the court, or misprision of the clerk, or because the motion for new trial remains undisposed of. Greenfield v. State, supra. If the judgement be entered at the trial term, before the entry of a motion for a new trial, the latter, when made and entered, if this be done within thirty days after such entry of judgment, suspends the judgment until the-motion is finally disposed of; and, if it be overruled, the judgment stands as of the date of the overruling of such motion, or of its disposition whether overruled or sustained. The continuance of the motion for new trial ,into the next term, and the adjournment to the nexl term, carries with it, as unfinished business of the court, the suspended judgment. Railroad v. Ray, supra. But the better practice is to formally set aside the judgment upon, entry of the motion for new trial.
To recapitulate: The making and filing of a bill of exceptions does not depend upon the disposition of the motion for a new trial; on the contrary, the latter depends on the former. That is to say, the matters which go to make up the bill of exceptions must be recalled to the attention of the trial judge, along with any new evidence which may be submitted in support of the mo
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Mr. Chief Justice Neil
delivered the opinion of the Court.
The plaintiff in error was indicted in the criminal court of Davidson county for the violation of the age of consent law, and sentenced to five years’ confinement in the State penitentiary. He appealed to this court, and has here assigned errors. A11 of the errors assigned are based upon a writing attached to the record, relied upon by plaintiff in error and his counsel as a bill of exceptions.
The paper referred to, however, cannot be treated as a bill of exceptions, because it was not filed until after the adjournment of the term of court at which he was tried and convicted; no time having been granted by the trial judge under the statute for so filing. He was tried at the December term, 1911, on the 12th day of the month. On that day he entered a motion for a new trial, which was continued over by the court until thgnext, or Jon* [272]*272nary, term. During that term, on the 20th day of January, the motion for new trial was overruled,' arid judgment was entered against the prisoner, and thereupon he appealed to this court, and was allowed by the trial judge twenty days from January 20th to file his' Dili of exceptions. The paper relied upon for a bill of exceptions was filed February 3, 1912; that is to say, the bill of exceptions was made and filed after the adjournment of the trial term, and without any order granted during thgt term allowing time to make and file the bill. Such a bill of exceptions comes too late.
The law is:
The bill of exceptions must be made up and signed at the trial term (McGavock v. Puryear, 6 Cold., 34, and cases cited; Sims v. State, 4 Lea, 357, 359; State v. Brockwell, 16 Lea, 683, 685; and see cases cited in note 14 to Shan. Code, sec. 4693), or within such time during the term as may be prescribed by the court by special order in the particular case, or by general order regulating the subject (Hinton v. Insurance Co., 110 Tenn., 113, 72 S. W., 118; Patterson v. Patterson, 89 Tenn., 151, 154, 14 S. W., 485), or within such time after the adjournment of the term, not, exceeding thirty days, as the judge may grant, under authority of the statute on that subject (Bettis v. State, 103 Tenn., 339, 52 S. W., 1071; Rhinehart v. State, 122 Tenn., 698, 127 S. W., 445). Likewise the judge, by adjourning,.from day to day as usual, or to a day certain before final adjournment, may extend the term, when a case is on trial and uncompleted when the regular time for adjournment, [273]*273of the court by law armes, and in such a case may, as incident thereto, act on a motion for new trial, and sign a bill of exceptions before he closes the term (Street Railroad & Telegraph Companies v. Simmons, 107 Tenn., 392, 64 S. W., 705; Ray v. State, 108 Tenn., 283, 67 S. W., 553; Acts of 1899, ch. 40; Shan. Code, secs. 6056, 6057; Acts of 1835-36, ch. 5 sec. 4); but he cannot sign such bill of exceptions after he has formally adjourned! the term of the court (Rhinehart v. State, 122 Tenn., 698, 127 S. W., 445), unless within the term, by order on the minutes, time be granted, not exceeding thirty days from the date of adjournment, for the making and filing of a bill of exceptions. The reason why the bilk of exceptions must be made up and signed within the term, or within thirty days thereafter, is that with the lapse of time the impression made on the memory of thej judge becomes more faint, and his recollection less reliable as to the evidence deposed to and the incidents; of the trial, and it is the dictate of prudence as well as the policy of the law that these matters shall be written down and submitted to him while they are still safely within his grasp. Clark v. Lary, 3 Sneed, 79, 80.
The motion for new trial must be made at the trial* term, but need not be then disposed of; it may be continued to the next term and then disposed of. McGavock v. Puryear, supra, 6 Cold., 39; Williamson v. Anthony, 4 Heisk., 78; 29 Cyc., p. 1003, note 13, and other authorities. There is no necessity for waiting until the motion for new trial is acted on to make up the bill of [274]*274exceptions. If not made np pursuant to the rules already stated, the right to it is lost. If made up pursuant to these rules, and filed, it becomes a part of the record (Shan. Code, sec. 4693; Muse v. State, 106 Tenn., 181, 183, 61 S. W., 80; Railway & Light Co. v. Trawick, 118 Tenn., 273, 275, 99 N. W., 695, 10 L. R. A. [N. S.], 191, 121 Am. St. Rep., 996, 12 Ann. Cas., 532), and may be used in support of the motion for new trial, whether that be disposed of at the trial term or at a term subsequent. It may be deemed, and no doubt is generally deemed, useless labor on the part of counsel to prepare a bill of exceptions before it is known whether the trial judge will sustain the motion for new trial; but this cannot, of course, change the rule of law based on the controlling reason above set forth. If the motion for a new trial be left undisposed of at the close of the trial term, it is continued by operation of law, as part of the undisposed of business of the term, appearing on the records of the court. But this is not true of the making and filing of a bill of exceptions. This is a matter wholly outside of the record, resting still in the memory of witnesses. The bill does not become a part of the record until it is written, signed, and filed; and when this is done, it is complete. In its very nature it is a creature and incident of the trial term.
The judgment, in this State, is usually entered on the verdict when the latter is recorded on the minutes, unless a motion for new trial be made before that occurs. Greenfield v. State, 7 Baxt., 18, 19; Railroad v. Ray, 124 Tenn., 16, 134 S. W., 858, Ann. Cas., 1912D, 910. If a [275]*275motion for a new trial be made before judgment, the latter remains unentered until that motion is finally disposed of, even if that be at the succeeding or any subsequent term. The judgment on the verdict may be lawfully entered at a. subsequent term, whether the failure to enter it at the trial term be the result of mere inadvertence on the part of the court, or misprision of the clerk, or because the motion for new trial remains undisposed of. Greenfield v. State, supra. If the judgement be entered at the trial term, before the entry of a motion for a new trial, the latter, when made and entered, if this be done within thirty days after such entry of judgment, suspends the judgment until the-motion is finally disposed of; and, if it be overruled, the judgment stands as of the date of the overruling of such motion, or of its disposition whether overruled or sustained. The continuance of the motion for new trial ,into the next term, and the adjournment to the nexl term, carries with it, as unfinished business of the court, the suspended judgment. Railroad v. Ray, supra. But the better practice is to formally set aside the judgment upon, entry of the motion for new trial.
To recapitulate: The making and filing of a bill of exceptions does not depend upon the disposition of the motion for a new trial; on the contrary, the latter depends on the former. That is to say, the matters which go to make up the bill of exceptions must be recalled to the attention of the trial judge, along with any new evidence which may be submitted in support of the moi inn. ns a means of convincing him that he has com-[276]*276milled ..error for which a new trial should be granted. When the motion is acted on by him during the trial term, this use of materials still remaining unwritten is ;made available by an appeal to the memory of the judge, :wbo is supposed to retain these matters during the term. But when the motion goes over to the next term, these ifluid máterials remain no longer available. They must .be reduced to form and filed. Or, in case the motion for ■new trial be disposed of at the trial term, and it is desired to test in the supreme court the correctness of the action of the trial judge in overruling the motion and entering judgment, the testimony and other matters proper to go into a bill of exceptions must be put into that form and filed during the trial term, or within thirty days which the judge is authorized to grant to the unsuccessful litigant. When we say trial term, we must be understood as including any period during which the term is running, and before final adjournment thereof, even though the court ran for a day, or several days, beyond the day on which it is arranged to end by the special statute or statutes prescribing the beginning and ending of terms of court; such running forward into the time of a succeeding term being also by authority of law to provide for the contingency of an unfinished trial. Code, statutes, and cases, supra. The periods, then, during which a bill of exceptions may be lawfully filed, are these: (1') During the whole of the ordinary term of the court at which the cause is tried, if there be no order of that court fixing a shorter period within the term; (2) düring such special period fixed by the [277]*277court within the ordinary term if there be any such period fixed; (3) during any period not exceeding thirty days after the adjournment, which the judge may grant on his minutes prior to adjournment; (4) during any extension of the term, while such extension is still running and not adjourned to court in course; (5) or within thirty days after the final adjournment supervening the extension, if such time be granted by the judge by order on his minutes before final adjournment.
In the absence of a bill of exceptions the’court must conclusively presume that the evidence justified the verdict of the jury. Bundren v. State, 109 Tenn., 225, 230, 70 S. W., 368.
Com,sel asked on the hearing, if the court should be of the opinion that the bill of exceptions was fatally defective, then that we should nevertheless examine such paper for the purpose of ascertaining the guilt Or innocence of the prisoner. The counsel referred to some* cases in which the court, after holding the bill of exceptions bad, nevertheless referred to it, and stated that the members of the court felt the more satisfied! with the result because after such examination they were convinced of the guilt of the prisoner or the justice of the result reached by them. There aire suchi cases, but we think the practice a bad one. If the court,, on reading such defective paper, should believe that the evidence did not justify the verdict, still it couid not! act on that paper, because not properly before it. Again,, if on looking to it the court should believe that the jury reached a correct result, and should so state, this would [278]*278perhaps prejudice the prisoner’s application for executive clemency. We believe the better practice is to act on the sound principle that, if a paper is not part of the record, it cannot be looked to for any purpose. If the prisoner has been deprived of his bill of exceptions through mistake of law on the part of his attorneys as to the time for preparing and filing such bill, there is left to him only an application to the governor, who may or may not read such paper as he may deem proper; that officer not being bound by the rules above established and necessary for the conduct of the business of the court. It is within his power to wholly pardon or to so reduce the sentence as to meet what he may deem the justice of the cause requires. We do not wish to be understood as expressing any opinion upon the guilt or innocence of the prisoner, or upon the merits of any application for pardon which he may make to the govern- or. If the case should be presented to him, we desire that it should be received by him free of any suggestion of this court as to the merits of the controversy between the prisoner and the State.
The result is the judgment of the trial court must be affirmed, with costs.
It is but just to the counsel who appeared before the court, Mr. Guild, to say that he did not represent the prisoner in the trial court, and is not responsible for the failure to make up and file the bill of exceptions in time.