Defendant files an earnest petition for rehearing, reiterating that the court erred in charging the jury as alleged in the specifications of error and that the evidence is in fact insufficient to sustain the verdict.
Defendant says that an exception was taken to the portion of the charge alleged to be erroneous in this, that two days after the verdict was rendered he made a motion for a new trial and in support of the motion specified this portion of the charge was erroneous. The apellant *Page 471 does not claim he made or filed any formal exception to the charge but claims that this procedure was in fact the filing of an exception and should be so considered. We need not pass upon whether this was a sufficient compliance with the statute. As stated in the main opinion the charge was examined in this respect and found not to be erroneous when we take the whole charge into consideration.
It is not necessary to again review the evidence. Appellant in his petition for rehearing says, "The counsel for Defendant concedes that the Court and State's Attorney gave this Defendant a fair trial, counsel for Defendant, however, is still convinced that an injustice was done this Defendant by such verdict and that he should get a new trial."
An examination of the record shows this characterization of the state's officers to be correct. The trial court was solicitous of the rights of the defendant and gave him the benefit in doubtful matters; the state's attorney was impartial and fair in his presentation of the case; and counsel for the defendant, though serving under the direction of the court, was zealous in appellant's defense. We are satisfied the evidence is sufficient to justify the verdict. The petition for rehearing is denied.
CHRISTIANSON, Ch. J., and NUESSLE and MORRIS, JJ., and BERRY, Dist. J., concur.