error without injury doctrine in Alabama

1939As observed by this court in Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 , the review here of any ruling as error without injury must of necessity be confined to those cases where the opinion of the Court of Appeals affords, by its conclusive statement of its finding of facts, adequate basis or bases for the application of the doctrine of error without injury.

1939As observed by this court in Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 , the review here of any ruling as error without injury must of necessity be confined to those cases where the opinion of the Court of Appeals affords, by its conclusive statement of its finding of facts, adequate basis or bases for the application of the doctrine of error without injury.

1947In the case of Campbell v. State, 216 Ala. 295 , 112 So. 902 , where the applicant for a writ of certiorari to the Court of Appeals asked this court to review that court on its application of the doctrine of error without injury, this court said: “The settled rule here is that we will not, on application for the writ of certiorari, review that court on such question unless the statement of the facts in the opinion is such as authorizes a review.

1947In the case of Campbell v. State, 216 Ala. 295 , 112 So. 902 , where the applicant for a writ of certiorari to the Court of Appeals asked this court to review that court on its application of the doctrine of error without injury, this court said: “The settled rule here is that we will not, on application for the writ of certiorari, review that court on such question unless the statement of the facts in the opinion is such as authorizes a review.

1973The dictum of Mr. Justice Lawson in Bryson v. State, 264 Ala. 111 , 84 So.2d 785, 787 , in discussing what the defendant claimed was a continuation of the solicitor’s argument as to the defendant’s failure to use a witness, reads pertinently: “ * * * Moreover, we are of the opinion that any injurious effect which the statement may have caused could have been eradicated by corrective action by the court, but the defendant did not request such action prior to making the motion to declare a mistrial.” Here Orr moved to exclude the remark, “Where is Mattie Campbell ?” which the trial judge did aft

1973The dictum of Mr. Justice Lawson in Bryson v. State, 264 Ala. 111 , 84 So.2d 785, 787 , in discussing what the defendant claimed was a continuation of the solicitor’s argument as to the defendant’s failure to use a witness, reads pertinently: “ * * * Moreover, we are of the opinion that any injurious effect which the statement may have caused could have been eradicated by corrective action by the court, but the defendant did not request such action prior to making the motion to declare a mistrial.” Here Orr moved to exclude the remark, “Where is Mattie Campbell ?” which the trial judge did aft

1971Postal Tel. [Cable] Co. v. Minderhout, 195 Ala. 420 , 71 So. 91 ; Birmingham So.

1971Postal Tel. [Cable] Co. v. Minderhout, 195 Ala. 420 , 71 So. 91 ; Birmingham So.

1951The principle which governs us in undertaking such a review is “that this court, upon certiorari, w;ill review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals.” Parham v. State, 217 Ala. 398, 399 , 116 So. 418 ; City of Birmingham v. Lynch, 240 Ala. 24 , 197 So. 48 .

1951The principle which governs us in undertaking such a review is “that this court, upon certiorari, w;ill review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals.” Parham v. State, 217 Ala. 398, 399 , 116 So. 418 ; City of Birmingham v. Lynch, 240 Ala. 24 , 197 So. 48 .

1932Co. v. Goodwyn, 202 Ala. 599 , 81 So. 339 ; Ex parte First National Bank, 206 Ala. 394 , 90 So. 340 ); and, if the Court of Appeals did not mention rule 45, nor the doctrine of error without injury, “the responsibility [it is said] must rest with that court, for this court will *16 not look to the record to find a basis for reviewing its action in that regard” (Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 ).

1932Co. v. Goodwyn, 202 Ala. 599 , 81 So. 339 ; Ex parte First National Bank, 206 Ala. 394 , 90 So. 340 ); and, if the Court of Appeals did not mention rule 45, nor the doctrine of error without injury, “the responsibility [it is said] must rest with that court, for this court will *16 not look to the record to find a basis for reviewing its action in that regard” (Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 ).

1924McNeil v. Munson Lines, 184 Ala. 420 , 63 South. 992 .” Manifestly, what we said on this subject in the original opinion was not intended to deny or impair this rule.

1924McNeil v. Munson Lines, 184 Ala. 420 , 63 South. 992 .” Manifestly, what we said on this subject in the original opinion was not intended to deny or impair this rule.

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1983McMullian v. State , 292 Ala. 248 , 292 So.2d 129 (1973); Ellis v. State 267 Ala. 235 , 100 So.2d 732 (1958), citing Shouse v. State , 258 Ala. 499 , 63 So.2d 728 (1953).

1971However, in Boyette v. State, 215 Ala. 472 , 110 So. 812 , we find per Anderson, C.

1971However, in Boyette v. State, 215 Ala. 472 , 110 So. 812 , we find per Anderson, C.

1959As was said by Judge Hutcheson at 37 Tex.Law Rev. 387, after discussing Young v. United States, 315 U.S. 257 , 62 S.Ct. 510 , 86 L.Ed. 832 : “ * * * the Court must be eternally on guard lest it be the confession of error, rather than a fair consideration * * * of the record, that produces the final judgment. * * * ” With this warning in mind, we have considered the admission of this evidence in the light of the doctrine of error without injury.

1959As was said by Judge Hutcheson at 37 Tex.Law Rev. 387, after discussing Young v. United States, 315 U.S. 257 , 62 S.Ct. 510 , 86 L.Ed. 832 : “ * * * the Court must be eternally on guard lest it be the confession of error, rather than a fair consideration * * * of the record, that produces the final judgment. * * * ” With this warning in mind, we have considered the admission of this evidence in the light of the doctrine of error without injury.

1959We find ourselves like Goodwyn, J. (in Williamson v. State, 258 Ala. 24 , 61 So.2d 1 ), unable to probe into the mind of the jury.

1959We find ourselves like Goodwyn, J. (in Williamson v. State, 258 Ala. 24 , 61 So.2d 1 ), unable to probe into the mind of the jury.

1955Ex parte Lackey, 228 Ala. 106 , 153 So. 289 .

1955Ex parte Lackey, 228 Ala. 106 , 153 So. 289 .

1955Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Ex parte Payne Lumber Co., 205 Ala. 259 , 87 So. 876 .

1955Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Ex parte Payne Lumber Co., 205 Ala. 259 , 87 So. 876 .

1951The principle which governs us in undertaking such a review is “that this court, upon certiorari, w;ill review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals.” Parham v. State, 217 Ala. 398, 399 , 116 So. 418 ; City of Birmingham v. Lynch, 240 Ala. 24 , 197 So. 48 .

1951The principle which governs us in undertaking such a review is “that this court, upon certiorari, w;ill review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals.” Parham v. State, 217 Ala. 398, 399 , 116 So. 418 ; City of Birmingham v. Lynch, 240 Ala. 24 , 197 So. 48 .

1947This court will not look to the record in the case to determine whether or not the doctrine has been improperly applied, as this would necessitate a review of the Court of Ap *413 peals 011 the facts or the application of the law to the facts. * * *” See also Tortomasi v. State, 238 Ala. 253 , 189 So. 905 ; Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Milazzo v. State, 238 Ala. 241 , 189 So. 907 .

1947This court will not look to the record in the case to determine whether or not the doctrine has been improperly applied, as this would necessitate a review of the Court of Ap *413 peals 011 the facts or the application of the law to the facts. * * *” See also Tortomasi v. State, 238 Ala. 253 , 189 So. 905 ; Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Milazzo v. State, 238 Ala. 241 , 189 So. 907 .

1947This court will not look to the record in the case to determine whether or not the doctrine has been improperly applied, as this would necessitate a review of the Court of Ap *413 peals 011 the facts or the application of the law to the facts. * * *” See also Tortomasi v. State, 238 Ala. 253 , 189 So. 905 ; Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Milazzo v. State, 238 Ala. 241 , 189 So. 907 .

1947This court will not look to the record in the case to determine whether or not the doctrine has been improperly applied, as this would necessitate a review of the Court of Ap *413 peals 011 the facts or the application of the law to the facts. * * *” See also Tortomasi v. State, 238 Ala. 253 , 189 So. 905 ; Ex parte Steverson, 211 Ala. 597 , 100 So. 912 ; Milazzo v. State, 238 Ala. 241 , 189 So. 907 .

1947Best Park & Amusement Co. v. Rollins, 192 Ala. 534 , 68 So. 417 , Ann.Cas. 1917D, 929.

1947Best Park & Amusement Co. v. Rollins, 192 Ala. 534 , 68 So. 417 , Ann.Cas. 1917D, 929.

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1940Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597 , 100 So. 912 ; Allie F. Cleghorn v. State, 219 Ala. 155 , 121 So. 436 ; Luther Massey et al. v. State, 224 Ala. 584 , 141 So. 259 ; Powell v. State, 224 Ala. 584 , 141 So. 260 .; Trawick v. State, 217 Ala. 149 , 115 So. 79 ; Parham v. State, 217 Ala. 398 , 116 So. 418 .

1937The opinion is, 'as we see it, to be properly interpreted as holding that if any error intervened in relation to any such question it was without injury, or, as stated in the opinion, was not “prejudicially erroneous to appellant.” In Baumhauer v. Liquid Carbonic Corporation, 223 Ala. 244 , 135 So. 427 , is the following observation: “It 'is settled that, in the absence of a full statement of the facts in the opinion, this court will not review the Court of Appeals, where it has applied the doctrine of error without injury.

1937The opinion is, 'as we see it, to be properly interpreted as holding that if any error intervened in relation to any such question it was without injury, or, as stated in the opinion, was not “prejudicially erroneous to appellant.” In Baumhauer v. Liquid Carbonic Corporation, 223 Ala. 244 , 135 So. 427 , is the following observation: “It 'is settled that, in the absence of a full statement of the facts in the opinion, this court will not review the Court of Appeals, where it has applied the doctrine of error without injury.

1937Campbell v. State, 216 Ala. 295 , 112 So. 902 .” Upon the question of error without injury, as applicable to some of the questions here argued, see Sloss-Sheffield Steel & Iron Co. v. Mitchell, 181 Ala. 576 , 61 So. 934 .

1937Campbell v. State, 216 Ala. 295 , 112 So. 902 .” Upon the question of error without injury, as applicable to some of the questions here argued, see Sloss-Sheffield Steel & Iron Co. v. Mitchell, 181 Ala. 576 , 61 So. 934 .

1933And while rather severely criticising the method of pleading, following the language of the elder McClellan in Hooper v. Birchfield, 115 Ala. 226 , 22 So. 68 , the Supreme Court, speaking through the Chief Justice, while agreeing to the legal principle announced, calls our attention to the law as declared in Torbert v. McFarland, 172 Ala. 117 , 55 So. 311 , and the suggestion is made that the judgment might have been affirmed under the doctrine of error without injury.

1933And while rather severely criticising the method of pleading, following the language of the elder McClellan in Hooper v. Birchfield, 115 Ala. 226 , 22 So. 68 , the Supreme Court, speaking through the Chief Justice, while agreeing to the legal principle announced, calls our attention to the law as declared in Torbert v. McFarland, 172 Ala. 117 , 55 So. 311 , and the suggestion is made that the judgment might have been affirmed under the doctrine of error without injury.

1933And while rather severely criticising the method of pleading, following the language of the elder McClellan in Hooper v. Birchfield, 115 Ala. 226 , 22 So. 68 , the Supreme Court, speaking through the Chief Justice, while agreeing to the legal principle announced, calls our attention to the law as declared in Torbert v. McFarland, 172 Ala. 117 , 55 So. 311 , and the suggestion is made that the judgment might have been affirmed under the doctrine of error without injury.

1932Co. v. Goodwyn, 202 Ala. 599 , 81 So. 339 ; Ex parte First National Bank, 206 Ala. 394 , 90 So. 340 ); and, if the Court of Appeals did not mention rule 45, nor the doctrine of error without injury, “the responsibility [it is said] must rest with that court, for this court will *16 not look to the record to find a basis for reviewing its action in that regard” (Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 ).

1932Co. v. Goodwyn, 202 Ala. 599 , 81 So. 339 ; Ex parte First National Bank, 206 Ala. 394 , 90 So. 340 ); and, if the Court of Appeals did not mention rule 45, nor the doctrine of error without injury, “the responsibility [it is said] must rest with that court, for this court will *16 not look to the record to find a basis for reviewing its action in that regard” (Ex parte Steverson, 211 Ala. 597 , 100 So. 912, 914 ).

1932The writ is denied on the authority of the following cases: Williams v. State, 222 Ala. 584 , 133 So. 737 ; Campbell v. State, 216 Ala. 295 , 112 So. 902 ; Postal Tel.-Cable Co. v. Minderhout, 195 Ala. 420 , 71 So. 91 .