¶1(concurring.) — This appeal, sought to be dismissed on the Attorney General’s mo*29tion, was taken during, and the appeal was returnable to, the 1911-12 term of the Supreme Court. The appeal was not docketed during that term. It was docketed January 13, 1913. The only possible theory upon which the denial of the motion to dismiss the appeal may be rested is to give rule 42 (Civil Code 1907, p. 1517) the effect of supplementing Code (1907) § 2870; (1886) § 3620; (1896) § 437. This rule (46) was adopted February 10, 1894. By the Code of 1886, § 675, subdiv. 4, the Supreme Court was authorized “to establish rules of practice in such court, and all other courts of record in this state.” See, also, in this connection, Code (1886) § 3610, authorizing the making, etc., of rules for the chancery courts. It will be noted that subdivision 4 (ante) does not, as is now the case (Code 1907, § 5955; Code 1896, § 3826), affirmatively restrict this rule power to exercise “not contrary to the provisions of this Code.” So, doubtless, the phrase, “unless otherwise provided,” occurring in section 3820 of the then Code (1886), Avas interpreted, by this court in adopting, in 1894, rule 46, Code 1896, p. 1195, as comprehending provisions othenvise afforded by rule of court. Certainly, if Code, § 2870, was all the positive law on the subject (and patently it is unless rule 46 supplements it), legal cause for discontinuance would intervene if an appeal returnable under the provisions of Code, § 2870, during a term was not docketed before the adjournment of that term; and if so, the reasoning and authority of the Court of Appeals in Swain v. State, 7 Ala. App. 5, 60 South. 961, would be conclusive in favor of the motion to dismiss. Nowhere in our law is there basis for the view that distinction has existed, or now exists, betAveen civil and criminal appeals as respects the return time thereof or legal cause of discontinuance thereof. The right of appeal, or the effect*30uation of an appeal, in civil or criminal cases depends in no wise upon a bill of exceptions. As is universally understood, in both classes of cases the right of appeal exists and may be effected without a bill of exceptions. Bills of exceptions are, when properly signed, a part of the récord of the appellate court only, and are almost invariably prepared and signed after the appeal has been taken. — Decatur Water W. Co. v. Foster, 161 Ala. 176, 49 South. 759. Hence Code (1907) § 6255, is without any bearing- upon, or relation to, the .question the motion here raises. Sentimental considerations, however worthily inspired or entertained, are not factors. When the right of appeal exists and when an appeal is returnable are questions of Iuav, determinable alone by reference to positive law, as the Court of Appeals points out in the Swain opinion. This positive law, as here involved, must be found in Code, § 2870, and rule 46. This rule confers no right upon an appellant, but it does vest in the appellate court a discretion when the question of discontinuance is seasonably raised by the appellee, and, accordingly, deprives an appellee, who seasonably moves dismissal, of the unqualified right to have the legal cause of discontinuance made effective by a dismissal, as was the practice illustrated in Winthrow v. Woodward Iron Co., 81 Ala. 100, 2 South. 92; Sears v. Kirksey, 81 Ala. 98, 2 South. 90, cited in the Swain opinion. Rule 46, in connection with Code, § 2870, establishes this practice: That the clerk shall not docket an appeal or file a transcript where there has been delay to docket or file during the term to which the appeal was returnable (section 2870) until the court has determined, within its discretion established by rule 46, “to permit the transcript to be filed and the cause docketed, for the first time, after the adjournment of the term to or during which the appeal is returnable.” The *31permission of the court is the condition precedent, established by the rule, for filing and docketing in the cases the rule describes. Without such permit filing and docketing should not be made by the clerk.
¶2Aside from the considerations, and to certainly avert the hazard of an unfavorable exercise of the discretion rule 46 allows, the careful practitioner in the appellate courts will, under the present practice, file his certificate of appeal during the return term and have the appeal docketed. By so doing, the issue of excusable delay vel non. under rule 46, will be, in most cases, entirely eliminated. The court, before adjournment for the term, always enters an appropriate order of continuance of pending matters.
¶3ON THE MERITS.
¶4Cleve Campbell, Bud McClain, and the appellant were jointly indicted for the murder of Marcella Lutes. After severance, the appellant was convicted and sentenced to life imprisonment.
¶5There was evidence tending to show appellant’s guilt of the homicide alleged, and justifying the court in refusing the affirmative charge requested for him.
¶6While there is argument in the brief for appellant asserting error in overruling a motion for change of venue, no such motion, or ruling thereon, appears in the bill.
¶7Mr. and Mrs. Lutes, elderly people, were found dead in their home on Thursday, November 9, 1911. They had been slain by blows upon their heads. They were, according to the record, last known to be alive on Monday afternoon, November 6, 1911. The motive appears to have been robbery. There is evidence in the bill of exceptions tending to show that defendant was concern*32ed in. their murder. He denied all knowledge of, or concern in, the killing, and asserted in the evidence introduced in his behalf that on the nights of November 6th and 7th he was at home, approximately eight miles from the scene of the tragedy. There appears in the bill 13 adverse (to him) rulings in respect of the evidence. Several of these rulings adverse to defendant lead his counsel to contend that the testimony admitted, - as in support of the state’s theory of conspiracy between the three jointly indicted, was illegally admitted, for. that there was then no evidence establishing, prima facie, a conspiracy in such sort as to admit declarations of another whose declarations were only admissible in consequence of a conspiracy established, at least prima facie. The insistence cannot prevail, since there was evidence showing, prima facie, the existence of such relation between the parties jointly indicted.
¶8The state introduced Mr. Wade, a minister, who testified that on Wednesday, November 8, 1911, his horse appeared to have been taken from his stable, and ridden some time between Monday evening, November 6, 1911", and Wednesday aforesaid. Over defendant’s objection the court allowed this evidence to go to the jury, subject to the condition that the state latterly connect the use of the animal by the defendant. The bill does contain testimony tending to show that defendant was the person who used the minister’s horse. There was no error in respect of the admission of the testimony in this connection.
¶9John McLemore, a witness for the state, testified to a certain conversation with the defendant which tended to show expressions, by defendant, at least susceptible of an incriminatory interpretation.
¶10Luther Baggett, called by the state, testified to circumstances tending to corroborate McLemore in respect *33of the presence, together, of defendant and McLemore at a place where McLemore had testified the conversation occurred. Manifestly this testimony of Baggett was relevant and admissible.
¶11The question, to McLemore, upon his recall to the stand, in response to which he testified that he knew what defendant meant when he (defendant) asked whether McLemore “had said anything about what Bud told” him (McLemore), could not have been, even if improper, of prejudice to defendant on his trial. There was no effort or offer by the state to then go further and show what McLemore knew or understood in that connection.
¶12The questions propounded to Joe Baldwin on cross-examination, by defendant’s counsel, which sought to affect the credibility of the witness by showing his indictment for, not conviction of, an offense involving-moral turpitude, were properly disallowed. — Watson v. State, 155 Ala. 9, 13, 46 South. 232; Ross v. State, 139 Ala. 144, 36 South. 718.
¶13Special charges A, C, F and G each conclude to an acquittal upon a hypothesis that justified that result without a due consideration by the jury of all of the evidence on the issue of guilt vel non. They were Avell refused to defendant. — Bardin v. State, 143 Ala. 74, 38 South. 833; Hurd v. State, 94 Ala. 100, 10 South. 528.
¶14Special charge B, refused to defendant, is a duplicate of given charge 5.
¶15Special charge I) was rendered faulty by the omission to hypothesize, and to exclude thereby defendant’s concern in the homicide as a co-conspirator. Under this theory of the state, according to the evidence, he might have been a guilty agent Avithout striking a blow or otherwise actually participating in the killing. — Jones v. State, 174 Ala. 31, 57 South. 31.
¶16*34Tbe court cannot be put in error for refusing special charges affirming that there is no evidence in support or in refutation of an issue, or elements of issues, involved -on a trial. Charge E, refused to defendant, was of this class.
¶17Charge H is a duplicate of charge 1, given at defendant’s instance.
¶18Charges I and K exact too high a degree of conviction of guilt in the minds of the jury. They were properly refused.
¶19Charge J is abstract.
¶20Charge N is confused. It does not clearly state an applicable principle of law. Its refusal was proper.
¶21Similar instructions to charge 0 have been repeatedly condemned.
¶22Refused charge P is a duplicate of given charge 10.
¶23No error appearing, the judgment is affirmed.
¶24Affirmed.