THE STATE

v.

RICHARD K. CALL

Hawkins, Justice:

This case comes before the Court on bill of exceptions, signed by Samuel J. Douglas, late Judge of the Superior Court of the Ter- *93•• sritory, stating the instructions he had gjven to the jury on the trial before him, and concluding as follows, “to which,instructions given by the Court, the defendant’s counsel excepted, and the Court- being desirous that the same might be heard before the- Court of Appeals of , this Territory, has signed and sealed this bill of exceptions.”

The first question presented by the record for the consideration of the Court is, have they jurisdiction of the case.

The act of the Territorial Legislature passed in 1833, gave- the benefit of an appeal or writ of- erior to the Court- of Appeals of the Territory, front} all final judgments and sentences'of the Courts of the Territory. Acts 1833,-page 113.» . . ,

This law was expressly repealed by an act passed in 1841, declaring, that from and after the passage of this act, no appeal or writ of error, or bill of exceptions to evidence; should be entertained or allowed, or granted to a defendant, or defendants, in criminal prosecutions in any of the Courts of this Territory; but if in, the trial of any criminal prosecution, the Judge before whom the same is tried, shall entertain a doubt upon any legal question, arising in the case, then and in that case, the said Judge may continue the same, and shall as soon as convenient make a statement in writing.of the question of law, and carry up or transmit the same^ peals for its consideration and decision. Ac*

- Tiie design of the Legislature is too clearli expressed : to occasion a doubt as to their intention.

The' certificate of the Judge neither state but expresses-, merely a desire to have the Court of Appeals. If the Legislature desig a -case, they have not so declared it.

A question of this kind arose before the Court of Appeals of the State.of ^Mississippi, in which the following view was taken: “It is a general rule, that the Appellate Court can act only on the record from the Inferior Court, which must contain a case sufficiently certain in its character to enable this Court to act upon it Admitting that the powers of this Court are co-extensive with those possessed by the former Supreme Court, the doubts of the'Judge below, if any existed, being all that could give jurisdiction, are not properly certified'to this Court. It should clearly appear by the record, that the Judge entertained doubts as to the rule of decision, and for this reason, that he had adjourned the question on which he doubted, to this *94Court for its,decision.” Caraway vs. Board, Police, Yazoo County, 1 Howard, 22.

The case ought rightly to have been presented to the Court, of Appeals of the Territory at' its last se'ssion, and the Judge of the Circuit Court finding it in the Court below, with the certificate of the Judge, did rightlyin having the papers transmitted to.this Court for its action. The Court having no jurisdiction of it, will have it remanded to the Circuit Court of the County, -where it was tried.

It is therefore considered by the Cpurt, that this cage be dismissed from the docket,;-and the papers be-remitted to the Circuit 'Court for the County of Wakulla, for further proceedings to be had therein, agreeably to law.