Appellant insists that in giving consideration to the paper described in the former opinion as the original *Page 222 charge of the court, we were in error, as that document was not properly before the court as a part of the transcript. Our treatment of it as a part of the record was upon the assumption that it was before the court by agreement of the parties. It appears from the motion for rehearing, however, that whether there was such an agreement is a controverted question, and the motion for rehearing will be discussed in this opinion without reference to the document mentioned.
As copied in the record, the place for the signature of the trial judge to his charge is blank. There is no bill of exceptions specifically calling attention to that fact, but in Bill of Exceptions No. 1 there is a statement copied in the former opinion to the effect that the charge is excepted to "because not properly drawn or sufficiently verified or certified." It would seem that to comply with the statutory provisions upon the subject the bill of exceptions should show in what particular there was a failure to sufficiently verify or certify the charge. If it be a conceded fact that the trial court consciously disregarded Article 738, C.C.P., in failing to sign the charge which was given to the jury, there remains the question of the effect of such failure. In Article 743, C.C.P., we find this language:
"Whenever it appears by the record in any criminal action upon appeal of the defendant that any of the requirements of the nine preceding articles (Arts. 735-742) have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial."
It would seem that the obvious effect of this statute is to inhibit a reversal of the present case on account of the failure to comply with Article 738, C.C.P., by signing the charge unless it can be said from the record that the failure was calculated toinjure the rights of the appellant. Such we understand to be the plain language of the statute, and cases in which its non-observance, since its amendment in 1897, has resulted in reversal, have been upon the finding that the disobedience of the statute was calculated to injure the accused. That is the reasoning in Logan's case, 40 Tex.Crim. Rep., and in Alberson's case, 54 Tex.Crim. Rep..
The statement in Logan's case, supra, to the effect that Article 738, C.C.P., has been held mandatory is supported by the decisions of this court rendered before the amendment of Article 743. See Williams v. State, 18 Texas Crim. App., 409. At the time these decisions were rendered, the statute, which is now Article 743, read thus:
"Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed; *Page 223 provided, the error is excepted to at the time of the trial." (Art. 685, C.C.P., 1879.)
This statute made it imperative that this court reverse a case in which it was properly shown by exceptions that the court has disregarded the requirement that the charge be signed. The law with reference to this imperative necessity of reversing a case for the failure to sign the charge was modified by the act of the Twenty-fifth Legislature, page 11, the modification made being that now embraced in Article 743, C.C.P., to the effect that the omission, though properly brought before this court, by exception, will not demand or authorize a reversal unless it appear that injury was probable. If there be decisions to the contrary rendered since the statute was so modified, they are not to be followed. The harmful effect of the omission, if in fact there was a failure to sign the charge, is not made apparent in the present record.
The motion is overruled.
Overruled.