My associates hold, as will be seen from their opinion, that a new trial should be granted in this case on the sole ground that certain written charges requested by the appellant in the court below, and duly read to the jury by the trial judge and indorsed "Given," were not taken by the jury with them to their jury room where the verdict of guilty against the defendant was reached. I cannot agree.
The record shows that the jury deliberated for 24 hours. There is an affidavit signed by five members of the jury that "said jury did not at any time during its deliberations have said charges, and same were never given to the jury or in their possession." I do not understand this affidavit to mean, nor my associates to hold, that these charges were not "given" to the jury in the sense that they were read to the jury by the court as a part of the law of the case. Indeed, there is no contention made by the appellant that this was not done. The record affirmatively shows that it was.
To reverse this case on the ground mentioned in the majority opinion would, it seems to me, put it in the power of a defendant, through skillful or careless counsel, to procure a new trial in practically every case of conviction. There is no practicing attorney who has not observed the confusion that frequently obtains in hotly litigated trials in being certain that, when the jury go to make up their verdict, they carry with them all the charges, papers, exhibits, etc., that they should have during their deliberations. Every careful lawyer, I am persuaded, takes particular pains to see that the jury take with them the papers that affect favorably his client's cause. We need not here concern ourselves about the case of a defendant without a lawyer to look after his case, for we know that this defendant (appellant) did have a lawyer, and a good one. And a defendant who did not have a lawyer would have no way of drawing the charges and getting the question now being discussed before the court.
There was no ruling of the trial court invoked on the trial of the case as to these charges, but that was other than in accord with appellant's request. The fair inference is, indeed the record plainly shows, that the said charges were left behind in the courtroom by the jury purely through inadvertence. No juror states that his verdict would have been any other than it was had he had the pieces of paper upon which were written the said charges with him or in his hands, while deliberating upon the case, or that he did not remember the charges from the reading of them to him by the court as a part of the law governing his deliberations. Indeed I am thoroughly persuaded from a reading of the whole record that the defendant suffered no injury whatsoever from the purely *Page 623 technical fact that the said charges were not actually physically in the hands of the jury while they were using 24 hours to arrive at a verdict of guilty against the defendant. The jury did not call for them; the trial judge did not refuse to allow them to be taken out by and with the jury. In fact, it is perfectly clear that the said charges were left out of the jury room through nobody's fault, but through a purely inadvertent oversight on the part of all concerned.
The majority of this court seem to regard the decision of the Supreme Court in the case of Orr v. State, 117 Ala. 69,23 So. 696, as requiring that the judgment here appealed from be reversed, but I do not so read the opinion in that case. In the first place the statute (Code 1923, § 9509) has been amended to meet what seems to me to be the very point upon which the judgment of reversal in the Orr Case was based. At any rate I do not think that case an apt authority for the holding announced in this case by my brothers, and I do not believe we ought to reverse a judgment of conviction on a matter which does not affirmatively appear to have injured appellant's rights, and which arose out of no adverse ruling of the trial court. Therefore I dissent. See B. R. L. P. Co. v. Seaborn,168 Ala. 663, 53 So. 241.