¶1 (dissenting).
¶2 I am unable to agree with the majority of the court. The majority opinion limits the purpose of the statute to such an extent that it strikes down and makes meaningless an important part of its language. When it comes to the decision part the opinion uses this language: ‘ ‘ But in our opinion the examination away from the courthouse under this statute must be devoted to the explanation of *911 the scene, location of distances, and snch testimony as tends to make a complete map of the situation. . . . We limit this statute, section 2720, Code 1906 (section 2213, Hemingway’s Code), here under review, to the plain object which it sought to attain, and we shall not extend it to the point of permitting the development of any substantive facts other than to point out the scene and such . facts as are necessary to a proper description of the scene.” (Italics mine.) Therefore the rule laid down is that no substantive facts can be developed other than to point out the scene and such facts as are necessary for a proper description thereof, while the pertinent language of the statute is “which shall be pointed out and explained to the court and jury by the witnesses in the ease, who may at the discretion of the court be questioned by him and by the representatives of each side at the time and place of such view or inspection in reference to any material fact brought out by such view or inspection.” (Italics mine.) It will be observed that the statute provides that not only the scene may be pointed out and explained to the court and jury by the witnesses in the case but the court in its discretion may question the witnesses himself and permit the attorneys of each side to do the same in reference to material facts brought out by such view or inspection. That language is rather broad. A case can easily be conceived where the view of the scene by the court and jury and the pointing out of the same by the witnesses would bring out many material facts. As appears to me, the legislature made this statute say one thing, and the majority opinion makes it say another and a materially different thing.
¶3 Furthermore, in my judgment, the majority opinion is harmful and mischievous in its effects, in that it holds that a violation of the statute by the court vitiates the whole trial regardless of whether any harm is shown to have been done the complaining party or not. Our Constitution contains no provision that the courts of the state *912 shall be held in any particular place. The matter is regulated exclusively by statute. Generally the circuit and chancery courts are required to be held in the courthouses at the county seats of the different counties of the state. The statute involved authorizes a departure in that respect under the conditions named therein. When the statute is invoked and the court makes the order therein provided for, the trial of the cause takes place in part elsewhere than in the courthouse; part of it goes on in the courthouse and part of it at the scene designated in the order. The trial at one of the places has no more authority or sanctity behind it than the trial at the other. One is just as legal as the other so far as affected by the place. But according to the hard and fast rule laid down by the majority opinion, if thé trial at the scene extends beyond its proper scope under the statute, if evidence is given or other things are done and said there which should have taken place in the courthouse, then the whole trial is vitiated and amounts to nothing, and that result follows regardless of whether any harm is done the complaining party or not.
¶4 What is to become of the language of the statute which is “that the witnesses in the case in the discretion of the court may be questioned in reference to any material fact brought out by the view or inspection?” Especially what does the phrase, “in the discretion of the court,” mean? It may be conceded that the court went too far in this case; that the statute was violated. But it was done by the court in the exercise of its discretion given by the statute. Will this court reverse on that account regardless of whether there was an abuse of discretion by the trial court? In other words, whether appellant was hurt or not by the unauthorized action of the court? It seems to me that the effect of the majority opinion destroys whatever usefulness wás intended by the statute, and especially is this true as applied to criminal cases. Under the rule laid down,-1 can hardly conceive *913 of a trial judge in a criminal case being willing to take the chances of repairing to the scene when he knows that the least step beyond the dead line will avoid the trial. Under the law and the action taken by the trial court, this ease was triable in two places, namely, in the courthouse and at the scene of the homicide designated in the record as Oil Mill alley. Because one trial overlapped the other, although the result of mere error on the part of the court, and without harm to appellant, the court says the whole trial is void. It seems to me that the doctrine of harmless error is peculiarly applicable to this state of case.
¶5 I am requested by Judge Smith to say that he concurs in this dissent.