The state in its motion for rehearing calls our attention to the fact that while the court in his main charge instructed the jury as stated in our original opinion and failed to give special charge No. 1, as stated therein, yet that he did give special charge No. 4, which is in effect the same as special charge No. 1, which was refused. A further examination of the record convinces us that the state is correct in this contention and that we were in error in reversing the case because of failure to give said special charge No. 1.
Special charge No. 4, given by the court at the request of the appellant, fully instructed the jury to the effect that they could not convict the appellant unless they believe that the appellant treated or offered to treat W. F. Beavers, the party whom the complaint and information charged that he did treat. We deem it proper to say that the attorneys representing the state did not brief this question on original submission and the error in overlooking this special charge No. 4 was due to the peculiar manner in which the record shows that it was given.
Believing that we were in error in the original opinion the state's motion for a rehearing is granted and the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been *Page 70 examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPELLANT'S MOTION FOR REHEARING.