The state has filed a motion for rehearing insisting that the objections to the charge were not sufficiently specific to direct the attention of the trial judge to the fact that appellant was complaining because the court had not submitted to the jury the issue whether Esther Turner was an accomplice witness, but only advised the judge that appellant was complaining because the court had not held her to be such accomplice witness as a matter of law. We are referred to Adams v. State, (No. 12,317, opinion on rehearing March 20, 1929, not yet officially reported), as supporting the state's position. There is an expression in the original opinion in that case to the effect that the question was not properly raised in the lower court as to whether the evidence made an issue as to a *Page 249 certain witness being an accomplice, but that point passed out of the case when upon motion for rehearing all the facts were considered and the conclusion announced as follows:
"We do not believe that this evidence raises the issue ofwhether Forbes was an accomplice, and certainly did not make him an accomplice as a matter of law."
It would be an unusual case where objection was being urged that a certain witness was an accomplice as a matter of law that did not also direct the court's attention to an investigation as to whether the evidence raised an issue of fact regarding the status of such witness. That such was true in the present case we have no doubt. In the written objections to the charge appellant was pertinently and specifically insisting that the court should hold as a matter of law that Esther Turner was an accomplice witness; that she had not been sufficiently corroborated and that for these reasons the court should not submit the case to the jury at all except to direct a verdict of acquittal. Immediately following the objection mentioned is one in this language:
"The court erred in refusing to charge the jury that the prosecuting witness Esther Turner is in law an accomplice, and in failing to charge the jury appropriately the law relating to accomplice testimony in connection with the evidence of said witness, Esther Turner, and in this connection defendant especially requests the court to give in his main charge to the jury appropriate instructions relating to accomplice testimony."
Art. 658, C. C. P., which was formerly Article 735, provides that objections to the court's charge shall be in writing "distinctly specifying each ground of objection." The correct interpretation of this statute, we think, is found in James v. State, 86 Tex.Crim. Rep., 219 S.W. 202, where the following announcement appears.
"In writing the statute, Article 735, C. C. P., the Legislature had in mind that the objections to the charge would be passed upon by the trial judge acquainted with the facts of the case and the law applicable thereto, and the terms in which the charge prepared by him was framed. The objects sought were to let the trial judge know in what respect the accused regarded the charge as faulty, to afford opportunity to correct it, and to make unavailable to the accused objections to the charge not made at the trial. * * * The statute should not be given a construction so technical as to deny the right of review on appeal where a substantial compliance is shown and its end practically accomplished." *Page 250
Giving application of such construction to the present case we entertain no doubt that the court's attention was sufficiently called to the omissions from the charge in the particular complained of.
The state's motion for rehearing is overruled.
Overruled.