Appellant's sole ground for rehearing is that there was a direct conflict between the charge of the court on the subject of principals and that of alibi.
In the original opinion we gave the testimony which clearly showed that appellant, with three or four other persons, entered into an agreement to steal an automobile and sell it and divide the proceeds; that they went on a hunt for one on the streets of Fort Worth under that agreement and found the automobile of Dr. Cloud and stole it; took it to Dallas and sold it to divide the proceeds. By his confession, copied in the original opinion, appellant showed that when the four persons who had entered into the agreement stole the car from in front of Dr. Cloud's, that two of them stopped on a corner of the block, he himself went down about the center of the block and another went to the car, *Page 548 cranked it and drove it along where he was and he got in it and continued to where the other two were and they got in it, and then they took it to Dallas. As a matter of fact, all of them, or at least appellant, was in such proximity to the one who actually cranked the car and started it along so as to be actually present at, and participating in, the taking.
The court's charge on principals was as follows:
"2. All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is, did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of a common design and intent of all, whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not."
It is seen this is a mere general definition of who is a principal. In submitting the case to the jury for a finding the court told the jury in the third division that if they believed beyond a reasonable doubt that appellant, acting by himself or together with the other three parties or either of them on or about the date alleged, unlawfully and fraudulently took from the possession of the said Cloud the automobile, etc., to find him guilty.
Then in another paragraph he correctly told the jury what was an alibi and instructed them that if the evidence raised a reasonable doubt in their minds as to the presence of appellant at the time and place of the commission of the offense to acquit him. The evidence raising the issue of alibi, as stated in the original opinion, was the testimony of himself, his wife and mother wherein they testified they were together continuously at his mother's before, at the time and after the time said automobile was stolen. It was proper, therefore, for the court to charge on both the subjects, that is on principals and on alibi. It might be contended under these issues so raised that that part of the charge on principals stating, "whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not" was harmless and not in conflict with the alibi charge, but if so the jury were not misled by any such conflict. But whether that is true or not, it is unnecessary to decide, because appellant did not at the time make any such objection to the charge of the court, and did not in the objections he did make call the court's attention to this matter or this claimed conflict as the statute expressly requires shall be done.
The record shows that the court prepared and gave to appellant's *Page 549 attorneys in ample time, his charge, so that if there were any mistakes in it they could point them out to the court by proper exceptions. The only objection they made to the charge was that no charge at all on principals should be given, claiming that the court should not have submitted the issue as he did in the third division of it, because he claimed there was no testimony "showing that the defendant was acting together with Joe Cox, Arthur Brown, Brock or anyone else." It will thus be seen that what appellant objected to was not to any supposed conflict between the definition of who were principals and the charge on alibi, but what he was objecting to was that there was no testimony at all that authorized a charge on the subject of principals.
Besides this, appellant took no bill whatever to the court's not complying, if he did not, with his objection. This was necessary. All he did was to merely make this objection. It is not shown what changes, if any, the court made in its charge, but apparently by not taking a bill appellant acquiesced in the court's charge.
Before the amendment of article 743 (old 723), Code of Criminal Procedure, by the Act of April 5, 1913, it required an accused to either make an objection to the court's charge when erroneous by a proper bill of exception or in motion for new trial. Under that article, before it was amended, this court had uniformly held, and in a great many cases, that unless a bill of exception was taken to the court's charge during the trial or by motion for new trial, however erroneous the charge might be, this court could not consider it. In Johnson v. State, 42 Tex.Crim. Rep., this court in discussing the said article held: "However erroneous the charge of the court may be, appellant having reserved no exception in the court below, either by bill or motion for new trial, they are without remedy at law." And again: "Appellant by neither bill of exceptions nor motion for new trial having complained of the court's charge, we can not review any supposed error in the charge, however erroneous it may be; that article 743 (723), Code of Criminal Procedure, gives appellant a perfect, complete and adequate remedy for the assertion of his rights; and if, through ignorance, neglect, or any other cause, he fails to avail himself of this remedy, we can not review the matter, and appellant is without remedy."
This has been held by this court continuously and in a great many decisions since the Johnson case. See note 23, page 519, 2 Vernon's Criminal Statutes, where a large number of these cases are collated.
The only difference between the said old article 723 and the amendment of it in 1913, is that the amendment requires an accused to make these exceptions and preserve them by a bill before the charge is read to the jury, and unless this is done, this court has uniformly held that it can not consider any objection to the charge made after the trial. Some of these cases so holding are collated in note 64, page 526, 2 Vernon's Criminal Statutes. This is the holding of this court down *Page 550 to now. Holder v. State, 81 Tex.Crim. Rep., 194 S.W. Rep., 165; Grider v. State, 82 Tex.Crim. Rep., 198 S.W. Rep., 579. So that as appellant did not point out to the court below his specific objection and call the court's attention thereto, which he now makes as to the claimed conflict between said charges, he can not avail himself now of any such objection. He waived it. Such conflict is not fundamental error.
The motion is overruled.
Overruled.