(dissenting). — I am unable to concur in the reversal of the judgment on the two grounds on which the conclusion to reverse is builded. These grounds are said to exist' in the action of the trial court in overruling an objection to a statement made by the solicitor in his opening argument to the jury and in a statement made by the trial judge in the first sen*418tences of his written charge to the jury. It is best to take from the bill of exceptions itself the recital of these matters: “During the course of his argument to the jury, the assistant solicitor made the following statement: Tf you do not hang this negro, you will have a similar crime in this county in six months.’ The defendant duly and legally objected to said remark of the assistant solicitor, but the court overruled said objection, to which action of the court the defendant then and there duly and legally excepted. The defendant also moved the court to instruct the jury to disregard said remarks, but the court overruled said motion, and to the action of the court in overruling said motion the defendant then and there duly and legally excepted.”
The other basis for imputation of error is this: “Gentlemen of the jury: For the first time in the history of this court since the appointment of an official stenographer, so far as I am advised, the judge of the court has been requested to render his charge to the jury in writing.”
This statement of the solicitor is the only statement made in argument to which the defendant reserved an exception at the time an adverse ruling by the court was made. The other objection interposed by the defendant to statements made by the solicitor in his opening argument to the jury evoked a ruling in favor of the defendant. There was no objection whatever to the statement attributed to special counsel when he was making the closing argument for the state “in reply,” to quote the bill of exceptions, “to certain remarks made by defendant’s counsel in his' address to the jury.” There was no motion made by the defendant at any stage of the case seeking to withdraw' the case from the jury on account of statements made in argument.—Johnson’s Case, 102 Ala. 1, 17, 16 South. 99. No motion was made for a new trial, as might have been done under the new practice established by the act approved September 22, 1915 (Gen. Acts 1915, p. 722). It is therefore manifest that error to reverse can, under long and universally recognized practice in this state, he predicated alone of error in one of the two clearly defined particulars stated. In respect of such cases as this, this court is an appellate court only; and, within its proper function, it can only review and revise particular matters efficiently reserved for its consideration in the court below. It is, in my opinion, a complete departure from the unvarying practice in this court to introduce error into the action of the trial court *419by reference to matters not embraced within the exception, or subsequently, to the ruling, occurring. The court has invariably presumed the absence of error in the trial court until error was shown on the face of the record. It has invariably held that the bill of exceptions must be “construed most strongly against the party excepting, and if it will admit of two constructions, one of which will reverse, and the other support, the judgment, the latter construction will be adopted.”—McGehee’s Case, 52 Ala. 224; Dickens’ Case, 142 Ala. 49, 39 South. 14, 110 Am. St. Rep. 17; Dowling’s Case, 151 Ala. 131, 44 South. 403. It has likewise invariably ruled that an exception to the argument of counsel that embraces matter not erroneous cannot prevail; the reason being, obviously, that the court will not separate the bad from the good, to the end that a judgment should be avoided.
In the first place, I cannot see that the statement with reference to which the exception was reserved was error at all. The court has not so held in this case except by giving a vitalizing effect to other statements of counsel, subsequently made, to which no exception was reserved. There was not in the remark to which the exception was reserved the slightest appeal to race prejudice. To interpret it to such an effect is, it seems to me, rationally impossible. It was a general statement of prophetic opinion, and that only. It asserted no fact. The only fact it implied was that this defendant was a member of the negro race, a fact obvious to all and undisputed. Unless it can be said to be error to say that one on trial is a member of the negro race, then certainly the basis of this exception was not an improper or erroneous declaration by the solicitor. Very much stronger statements in arguments to juries touching the negro race have been held not to constitute error. In the case of Brown v. State, 121 Ala. 9, 25 South. 744, where the defendant was on trial on an indictment for rape, the solicitor in his closing argument to the jury several times characterized the defendant as having a foul heart, with being a fiend, a demon, “and appealed to the jury to convict the defendant in order to prevent innocent little white girls from such fiends and demons as the defendant [italics supplied].” The court, notwithstanding, affirmed the judgment of conviction. This case was approvingly cited in Peel’s Case, 144 Ala. 134, 135, 39 South. 251. In Dennis v. State, 139 Ala. 109, 35 South. 651, the court affirmed a judgment, in review of exception appropriately taken, notwithstanding the solicitor *420had said to the jury: “You gentlemen know the evils attendant upon these crap games; a crowd of negroes with a bottle of whisky in one pocket and a pistol in the other, get together to gamble, and you know what crimes grow out of these meetings.”
In Jackson’s Case, 136 Ala. 22, 34 South. 188, where the defendant was on trial for murder, the solicitor said to the jury in his argument: “Mob law must be stopped . If a crowd of negroes take a negro out and hang him, and if the jury acquit the defendant, where they have evidence to convict him as you have in this case, then the first thing you know, they will be taking a white man out and hanging him.”
To seasonable exception reserved to review this statement of the solicitor, this court responded as follows:
“The evidence tended to show that the deceased was hanged' by a mob, and that the defendant participated in the lynching. Under this evidence, the solicitor in his remarks to the jury, and which were objected to by the defendant, did not exceed the bounds of legitimate argument.”
When the only remark of the solicitor to which an exception was reserved in this case is contrasted with the remarks upon which the court rested a pronouncement of error and a reversal in Tannehill v. State, 159 Ala. 52, 48 South. 662, it will readily appear that the Tannehill Case cannot be employed as an authority to support the conclusion that the matter here excepted to was error. There the court interpreted the remarks of the solicitor as appealing to race prejudice. It takes, in my opinion, some stretch of the imagination to find in the remarks of the solicitor an appeal to race prejudice. But, be that as it may, Tannehill’s Case is without bearing on the single exception in this connection to - which this court can devote its powers of review. In James v. State, 170 Ala. 74, 54 South. 494, the solicitor said:
“If the negro was taken out of court, there would not be much left.”
Following what was supposed to be an authority afforded by Tannehill’s Case, supra, the judgment of conviction was reversed. If the James Case is to be justified at all, it must be upon the theory that the statement of the solicitor was the assertion of a fact not in evidence. Again, if it can be imagined that the mere expression of the solicitor’s prophetic opinion was error, it was, in my opinion, entirely removed by this specific, emphatic, *421condemnatory declaration by the court to the jury in his written charge: “In the first place, I charge you that the arguments of counsel are not evidence in this case, and should be considered by you merely as explaining the evidence so as to enable you to reach a fair and impartial verdict. I therefore exclude from your consideration the several remarks made by the solicitor for the state in reference to the white and black races, as I do not think that they will help you in the consideration of the evidence, although they are not of such a character as would tend to inflame or arouse the passions of any ordinarily intelligent person.”
That the defendant was, at the time, satisfied with the court’s effort to remove all possible prejudice that might have resulted from statements made by the solicitor in his argument to the jury is sufficiently shown by the fact that ho request of the court to do anything more in that regard was made.
When it is considered that the bill of exceptions expressly affirms that the remarks attributed to the special counsel in his closing argumént to the jury were “in reply to certain statements made by defendant’s counsel in his address to the jury;” when it is considered that no objection was made to this argument of the special counsel, and no exception of course reserved to any ruling of the court thereon; when it is considered that the improper statement by the solicitor, to which the court sustained defendant’s objection, was made subsequent to the ruling made the basis of the exception under consideration; and when it is considered that the unobjected to remarks of the special counsel were made subsequent to the ruling of the court to which the defendant reserved an exception — it is impossible, it seems to me, to give to these subsequently transpiring events an effect to make that error which was before the subsequent events happened manifestly free from error. In B. R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 284, 287, 61 South. 80, 84 (Ann. Cas. 1916A, 543), in review of a motion for new trial (no motion for new trial was made in the case at bar) it was said: “Upon a very full consideration of the two statements heretofore pointed out as improper, we cannot say, from the dim light afforded by the record, that they were, as made, either grossly improper or highly prejudicial. Each case of this character must be decided upon its own merits. There is no horizontal rule by which these qualities can be ascertained in all cases. Much will depend upon the issues, the parties, and the general atmosphere of the particu*422lar case. The final test is: Can the prejudicial tendency or effect of the improper statement be counteracted by an appropriate instruction from the trial judge, or is it probably beyond the reach of such remedial action ?”
In employing the phrase “the general atmosphere of the particular case” it is very plain that the court did not intend to upset the established practice in this state. The phrase is metaphoric only. What it manifestly meant was that the circumstances disclosed by the record of the particular case would be looked to by the court in reviewing a ruling on motion for new trial in order to determine whether the improper remark, to which no effectual exception had been reserved, was either so grossly improper or highly prejudicial that it could not be eradicated by remedial action on the part of the trial judge. Atmosphere as there employed meant circumstances only. Atmosphere is too intangible to be put into a record; and unless its figurative use in legal writings is so understood, it has no place in legal parlance. Atmosphere may be put into a receptable; but atmosphere cannot be put into a record.
In my opinion, the exception taken to the passage in the written charge of the court is equally vain. In the first place, a quotation of the whole paragraph will serve to demonstrate the entire innocence of the expression of which the appellant complains : “Gentlemen of the jury, for the first time in the history of this court since the appointment of an official stenographer, so far as I am advised, the judge of the court has been requested to render his charge to the jury in writing. This is a privilege which the law gives, but whether I will be able to make the law in this case more plain to you in a written charge than I could by minutely explaining it to you orally, it matters not.”
The bill of exceptions states that the trial was concluded at 4 p. m. and that in the presence of the jury the defendant requested the court to give its general charge to the jury in writing; and that the argument of counsel was concluded about 7 p. m. It is further recited that:
The court “thereupon took a recess until 8:30 p. m. * * * The judge of the court came in a little later, but court was not reconvened on account of the reporter transcribing the written charge of the judge until 10:30 p. m., at which time the court read its general charge to the jury.”
*423It is very natural that the judge should feel a disposition to. make an explanation to the jury. He stated that this privilege which the defendant had claimed was one given the defendant by law. His expression following that was purely explanatory. The only possible implication from the whole statement made by the judge was that he thought the requirement, the claim of the privilege the law gives, was a useless requirement. He stated therein no law except the law that confers on the defendant the privilege he claimed. He did not allude in the remotest degree to the merits of the cause, nor to the guilt or innocence of the accused. He did not in any way criticise the conduct of' the defense under the management of defendant’s counsel. To repeat : He simply expressed his view that it was useless with an official stenographer serving the court to claim the privilege then claimed, for the first time, so far as he was advised, since the court had been served by an official stenographer. That the proceeding was a useless ceremony is obvious when the purpose of the ancient rule, whereby the judge is required on request of the party to write out his charge, is considered — a purpose that is fully met and conserved by the law’s provision for an official to take down.the oral charge of the court. In Phillips v. Beene, 16 Ala. 720, it was pertinently said: “It cannot be seriously contended that every expression pf opinion by the court, during the progress of the trial, if erroneous, shall furnish ground for reversal. But such opinion must, in some manner, influence the result of the cause, or be supposed to do so, by being given in charge to the jury, or by a refusal to charge, or by being connected with the exclusion or admission of the evidence.”
It requires, it seems to me, a most remarkable exercise of the most active imagination to conclude that this statement of the trial judge could have had any possible effect upon the verdict reached by the jury in this case.
I, therefore, dissent from the reversal of the judgment on the grounds on which that conclusion is builded.