Appellant was indicted for robbery, was convicted of aggravated assault, and his punishment fixed at a fine of $250 and twenty days in jail. The court's charge presented the law of assault, assault with intent to rob, and aggravated assault. In the third paragraph of the motion for new trial, appellant complains that the court erred in failing to submit to the jury a charge on alibi. The testimony of appellant makes out a complete case of alibi. No requested charge was asked by appellant on this issue. Before the enactment of article 723, Code Criminal Procedure, it was held that it was necessary to request a charge or except to the court's failure to charge on alibi by bill of exceptions. Quintana v. State, 29 Texas Crim. App., 401. The State, through her Assistant Attorney-General, insists that inasmuch as this conviction is for a misdemeanor, a requested charge should have been tendered, basing this insistence on appellant having been charged with a felony and convicted of a misdemeanor, the case must be tried under the rules of law governing the trial of misdemeanors. In Allen v. State, 8 Texas Ct. Rep., 322, appellant was convicted of burglary; and we there held that, when the motion for new trial raised the point of failure to charge upon alibi, and in the same connection referred to bill of exceptions by numbers which raised the question, but such bills were not filed in term time, through the fault of the trial judge, he having refused the bills, the question of the omission to charge on alibi was sufficiently raised. It was further held that if it be conceded that the exception came too late, still the motion for new trial was presented in time, and referred to said bills which called the court's attention to the failure of the court to charge the law, but which in the opinion of the *Page 303 court came too late for that purpose. This decision appears to be authority for the proposition that where one is indicted for a felony and the conviction is for a misdemeanor, being a lower grade of the offense charged, the rules of criminal procedure in reference thereto in felony cases is to be applied, regardless of whether appellant is convicted of a felony or misdemeanor. That is, where one is charged with a felony, and the conviction is for a misdemeanor, an exception to the charge of the court under article 723, Code Criminal Procedure will be sufficient, regardless of whether the verdict is for a misdemeanor or a felony. But, if the charge in the first instance is a misdemeanor, and the conviction is a misdemeanor, the rules of procedure in reference to misdemeanors, as construed by the decisions of this court, govern. That is, the trial being for a misdemeanor, and the conviction being for a misdemeanor, appellant must specially except to the charge, before the same can be reviewed by us, and must tender to the trial court a special charge to cure any omission in the charge. Failing to do the latter, we will not review the case for omissions in the charge. As stated above, in the third paragraph of the motion appellant excepted to the court's charge in that it failed to present the issue of alibi. The facts of this case place it under the rules governing any other felony. We accordingly hold that said exception comes within the rule laid down in article 723, Code Criminal Procedure. The evidence shows that the issue of alibi was properly presented by the testimony, and the court erred in failing to so charge. For the error of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.