The doctrine of error without injury, or harmless error, ought not to be applied where a litigant is denied rights guaranteed to him by the express provisions of the Constitution and statutes. Intentional violation of express laws ought not to be justified or excused on the ground that no injury results therefrom. To apply the stated doctrine to such cases encourages evasions and infractions of the laws. When it is made to appear to an appellate court that a litigant in the trial court was arbitrarily deprived of constitutional or statutory rights, as in this case, the right of jury trial in the mode prescribed by law, and therefore "due process," the court will not look to see if any other injury was suffered. Surely, it is injury enough to intentionally deprive a litigant of such rights, which are expressly guaranteed to him by the organic law. If this be not enough injury to reverse, surely it is enough when the trial court, in addition, takes burdens off one litigant and imposes them on another.
Let us apply these principles to the case in hand: The Constitution of this state guaranteed to the plaintiff in this case the right of jury trial and due process of law. Under the statutes and the common law of this state a plaintiff who has introduced any evidence to prove the case made by his complaint has now, and from the origin of the state has had, the right to have a jury pass upon the weight and sufficiency of that evidence. This state has always held to the "scintilla" doctrine of evidence as being necessary to fully protect this right of jury trial. When the plaintiff rests, if the defendant conceives the *Page 307 idea that the plaintiff's evidence is insufficient to go to the jury, the law expressly provides how he can do this; that is, by a demurrer to the evidence, which makes the whole matter one of record, the evidence as well as the pleading. If the defendant should be in error, the burden the law imposes on him is that a judgment be rendered against him, and for the plaintiff.
If the defendant concludes that the plaintiff has introduced no evidence to prove any material allegation of his complaint, the law expressly provides that he may ask in writing the instruction to find for the defendant, and that thereupon the court must, in writing, give, or refuse to give, such instruction to the jury. In this case the plaintiff has the same right to ask the court in writing to instruct the jury that if they believe the evidence they must find a verdict for plaintiff. In this manner the whole case, by express statutory provisions, is made matter of record; and this course must be taken before the law allows the court or the judge to pass upon the effect of the evidence. The statute expressly prohibits the trial judge from passing on the effect of the evidence unless the mode prescribed by law is followed. Here, again, the law imposes a burden on the defendant, which is that, if he should be in error as to the effect of the evidence, the verdict and judgment will go against him.
The undoubted law of this state has ever been that, where a plaintiff introduces any competent and relevant evidence tending to prove any count of his complaint, he has a right to go to the jury and have them pass upon its weight and sufficiency, unless taken from the jury, by making the evidence matter of record, in one of the modes provided by law; and the court is expressly prohibited from passing upon its weight, sufficiency, or effect until it is made matter of record in the mode provided by law. The trial court or judge is not presumed to pay any attention to the evidence, except as to its relevancy, competency, or admissibility. The Constitution and the statutes prohibit him from passing upon its weight, sufficiency, or effect; and he can never lawfully do so until it is made matter of record, and presented to him as matter of record. The only attempted justification of the trial court's excluding all of the plaintiff's evidence is that it is insufficient. If the court excludes it, its sufficiency, weight, and effect is thereby passed upon by the court, and not by the jury; and the express provisions of the Constitution and of the statutes are thereby violated. If the trial court thus violates the law, and thus deprives the plaintiff of his rights, the plaintiff can protect himself against a judgment final only by taking a voluntary nonsuit with a bill of exceptions, another express right conferred on him by statute.
Is the plaintiff to be deprived of the benefits of this statute, by this court, as he was of the other statutes, by the lower court, on the doctrine of error without injury? Must this court join with the trial court in depriving the plaintiff of the rights which the law has conferred upon him by express provisions? How is it possible to apply the doctrine of error without injury when a nonsuit is taken, as in this case, without wholly depriving the plaintiff of the benefits of the statute as to voluntary nonsuits? On this appeal he would not raise any question as to the sufficiency or effect of the evidence. If it be made matter of record, so that we can pass upon its sufficiency, it must be made so by the trial court or by the defendant, and not by the plaintiff. The sole purpose of the plaintiff in taking the nonsuit, and the appeal, is that he may have the sufficiency and effect of his evidence tested and passed upon, in the mode and manner provided by the Constitution and statutes. Is this court to deny him all these rights, under the doctrine of error without injury? Surely not.
Suppose that a trial court should say to a plaintiff, "The law gives you the right to a jury trial in this case, but I am going to take the law in my own hand, and try the facts myself;" and the plaintiff excepts to such action, but the court proceeds without a jury and hears the evidence, and renders judgment for the defendant, and the plaintiff appeals. The doctrine of error without injury ought not to be applied in that case, to affirm the judgment rendered in violation of the Constitution and statutes; but it could then be applied with more show of justice than if the plaintiff had taken a nonsuit on the refusal of the trial court to allow him a jury trial, and so prevented a judgment final against him.
These two cases, I concede, are extreme ones; but the principles of law involved and violated are the same as where the trial court excludes all of the plaintiff's evidence on the ground that it is insufficient.
This doctrine of error without injury was attempted to be applied when an express statute was ignored which required the court, and not the jury, to fix the punishment.
The contention was answered in this wise:
"The Legislature has the sole power to direct the courts in what manner they shall proceed in the trial of a cause. When this is done, their direction becomes the rule which forms a part of the 'due course of law,' which it is the right of the defendant to have administered. It becomes the way, and the only way, unless the Legislature has enlarged it with exceptions. The court cannot substitute its reason for the law. Reason ceases to be the guide when the law is known. It is only when the law is uncertain, that 'right and justice' become the rule. Then reason may aid in the search after these." Leoni v. State, 44 Ala. 114.
Counsel, in their application for a rehearing, rely upon the ruling and what was said in the case of Randolph v. State,100 Ala. 139, 14 So. 792, and other cases, as being applicable to the present holding. The answer to this contention is that the statutes as to demurrers to evidence and voluntary *Page 308 nonsuits do not apply to criminal cases, but are limited to civil cases. Martin v. State, 62 Ala. 240.
Moreover, in the Randolph Case and others like it, there was no proof of venue, and, the venue not being waived, but insisted upon by both the motion and a charge, the trial court had no jurisdiction, and of course should have discharged the defendant for want of jurisdiction.
The statutes as to demurrers to evidence and to nonsuits by their terms are limited to civil suits. Demurrers to evidence are sometimes spoken of in opinions in criminal cases, but it is not the statutory right of demurrer, nor, strictly speaking, the common-law right. See Brister's Case, 26 Ala. 127.
THOMAS, J., concurs in the above views of the writer.