At a former day of the term the judgment herein was affirmed. Motion for rehearing is filed presenting again the alleged errors in the court's charge. It may be a sufficient answer to all these matters that there was no exception taken to the charge of the court at any time except on motion for new trial, as evidenced by the record. Under the late statute it is necessary that, unless there be fundamental error, exception be taken to the charge before the argument is begun. This, of course, requires the court to charge the jury before argument.
Among other things it is contended that appellant set up the fact that he purchased the auto in question. The record shows that appellant claimed the auto by purchase and so testified on the trial. This was his account of possession. The court instructed the jury in language and approved form with reference to his explanation of possession of stolen property as set out in Wheeler v. State, 34 Tex.Crim. Rep.. That case has been followed in a great number of cases, all of which will be found in volume 5, Rose's Notes, in the annotation of the decision in the Wheeler case. There have been other decisions rendered to the effect that a simpler and as correct a way would be to inform the jury directly as to what the explanation was, and if it was true, or there was a reasonable doubt about it, they should acquit. Had the court followed those decisions he would have charged directly that if the jury believed appellant bought the auto, or there was a reasonable doubt as to whether he did or did not, they should give him the benefit of the doubt and acquit him. The form given by the court has been approved in an unbroken line of cases wherever that charge has been required as sufficiently presenting the matter.
We note the fact that appellant was not represented by counsel in the trial, otherwise these exceptions to the charge would doubtless have all been properly taken and presented, but the law has not made an exception in favor of the accused who is not represented by counsel, and this court would not feel justified in engrafting this exception on the statute. It might be worthy of consideration by the court, when looking at the case, to see that as near as is possible a fair trial has been awarded.
The failure of the court to give a charge with reference to purchase was not excepted to at the trial except in the motion for new trial. It is recited in the motion for rehearing that the court may not have read the charge to the jury as required by law, or presented it to the defendant for the purpose of his noting exceptions. There is nothing in the record that shows or indicates that the court failed to comply with the law in these respects. Of course, if it was shown and verified so this court could act upon it, that the charge was not read to the jury or given to the defendant as required by the statute, we would have a *Page 24 very serious question, and one that would require this court to reverse. But the record does not sustain that view of appellant's motion.
The motion for rehearing, therefore, will be overruled.
Overruled.