Opinion
4 Div. 297.
January 20, 1927.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
W. O. Mulkey, of Geneva, and J. M. Loflin, of Enterprise, for appellants.
The portions of the court's oral charge to which exceptions were reserved, were in violation of section 9507 of the Code, being a charge upon the effect of the evidence without being requested to do so. Mayer v. Thompson-Hutchison Building Co., 116 Ala. 635, 22 So. 859.
J. C. Yarborough and J. W. Hicks, both of Enterprise, for appellee.
The charge of the court was not upon the effect of the evidence; there was no evidence of defendants' plea. But, if the language complained of were in violation of the statute, it was error without injury. Schloss v. Inman, 129 Ala. 424, 30 So. 667; Brilliant Coal Co. v. Barton, 205 Ala. 89, 87 So. 830; Lovelace v. Miller, 150 Ala. 422, 3 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann. Cas. 1139.
Section 9507, Code 1923 (section 2274, Code 1852), declares that the court "shall not charge upon the effect of the testimony, unless required to do so by one of the parties." It has been held that this section "was not intended to abridge the original, inherent power of the court to direct the attention of the jury to undisputed, admitted facts." Dennis v. State, 112 Ala. 64, 20 So. 925; Tidwell v. State, 70 Ala. 33. And, "when the record shows affirmatively that certain facts are clearly shown and not disputed — not made any part of the contention — then it is not error if they be assumed in the charge to be facts, and stated as such without hypothesis. * * * [But] If there is any conflict in the testimony, or if testimony is of such indeterminate character as that inferences must be drawn to make up its completeness, then such fact, or assumed fact, cannot be given in charge without hypothesis." Carter v. Chambers, 79 Ala. 223.
In this case, the fact of defendants' assault upon the plaintiff, as charged, being undisputed and expressly admitted by defendants, could be properly stated to the jury as a fact, without hypothesis. So, also, the admitted circumstances all showed, to a certain legal conclusion, that there was no justification or excuse for the assault; that is, none that could be recognized in a court of law, however strong the moral justification may have been.
In the case of Schloss v. Inman, 129 Ala. 424, 430, 30 So. 667, 669, it appeared that the trial judge, in response to a statement by the jury that they did not understand the general affirmative charge given for the plaintiffs, said:
"I charge you whether you believe the evidence for the plaintiffs or the claimant you must find for the plaintiffs."
This court said:
"This was a charge upon the effect of evidence, and being given ex mero motu, was improperly given in view of section 3326 of the Code [1896; section 9507, Code 1923] which provides * * * But the facts entitling the plaintiffs were respectively established either by record evidence or were admitted so as not to depend on the credibility of oral testimony, and were such as made a verdict for the plaintiffs the only one which properly could have been found. Such being the case it is legally impossible that the jury in finding for the plaintiffs were improperly influenced by the oral charge and, therefore, it furnishes no ground for reversal."
Thus, prior even to the adoption of rule 45, this court recognized the validity of the doctrine of error without injury in this class of cases with respect to violations of this statute by unsolicited instructions to the jury on the effect of the evidence.
We feel constrained to follow that decision, and to hold that the error of the trial court in instructing the jury that, on the undisputed facts, the plaintiff was entitled to a verdict, was error without injury. In so holding, however, our decision is strictly limited to cases like this, where the essential facts are all admitted, and the result in no wise depends upon the credibility of oral testimony.
Plaintiff's consent to the administration of the beating, as testified to by defendants, was admissible and proper to be considered in mitigation of damages (Logan v. Austin, 1 Stew. 476), but no question is presented as to that.
As to the unavailability, by way of justification or excuse, or extenuation, of the fact that plaintiff had been guilty of improper familiarities with the little girls — of which fact defendants had been informed some time before the time of the beating, which was deliberately planned and executed — the ruling of the trial court is fully supported by the case of Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann. Cas. 1139, citing Terry v. Eastland, 1 Stew, 156.
Finding no error available for reversal, the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.