It is with considerable reluctance that I find myself in disagreement with my associates as to the proper application of Supreme Court Rule 45 in this case. I am in agreement with the majority, that the refusal of the presiding judge to mark certain written charges, requested by the defendant, either given or refused as so presented, and to sign his name thereto, constitutes error. All of the decisions cited by Judge RICE in the majority opinion hold to this view. The only point of difference between us lies in the fact that the majority holds to the view that as the charges are not a part of the record, we are limited to a consideration of the record, exclusive of the charges, and so considering the record we may say, that the ruling of the court in excluding the charges was error without injury.
I cannot see it that way. Brickell, Chief Justice, in the case of Barnewall v. Murrell, 108 Ala. 366, 18 So. 831, 833, said: "If the presiding judge should refuse, on request, to express in writing the giving or refusal of instructions, and the party aggrieved should reserve an exception, the error would be cause of reversal, for the judge would have denied a right the statute confers, and deprived the party of the opportunity of revising in an appellate tribunal the correctness or incorrectness of the instructions." That is just exactly what happened in this case. The instructions were presented, the presiding judge deliberately refused to pass upon them in the face of a statute requiring him to do so, an exception was reserved to this action, and the defendant was thereby deprived of the right, given him by law, to have these charges reviewed by an appellate court.
Not being a part of this record, these charges cannot be considered on appeal. They may not even be looked to, to see whether or not they declare correct rules of law. Sharpley v. State, 18 Ala. App. 620, 93 So. 210; Batson v. State, 216 Ala. 275,113 So. 300; Davis v. State, 18 Ala. App. 482, 93 So. 269; Carroll v. State, 16 Ala. App. 454, 78 So. 717.
The only answer to the above is Supreme Court Rule 45, adopted after the case of Barnewall v. Murrell, supra, which provides that no judgment may be reversed, etc., * * * unless, in the opinion of the court, to which the appeal is taken, or application made, after the examination of the entire cause (italics mine), it should appear that the error complained of has probably injuriously affected the substantial rights of the party." *Page 572
In the first place, the action of the presiding judge has placed it beyond the power of the appellate court to examinethe entire cause. By the exception taken to the refusal of the presiding judge to pass upon certain charges requested, it is made to appear that the entire cause is not before us. Again, the error complained of has injuriously affected the substantial rights of defendant; in that, it has denied him the statutory right to have these charges passed upon.
If the rule is as announced by the majority, then a trial judge may set aside a mandatory statute, and avoid a reversal of the cause, because of the very error which he has committed.
I have read the recent case of Morris v. State (Ala. Sup.)175 So. 283,5 in which it was held in an opinion by Anderson, Chief Justice, that the failure of the jury to take a charge marked given by the trial judge into the jury room was error without injury. Upon a close reading of this opinion, I find nothing in conflict with what I have said.
In my opinion, this judgment should be reversed.