In the motion for rehearing it is not insisted by the State that the evidence does not raise the question as to whether or not Barrett was an accomplice, but the State insists that the bill of exceptions taken to the refusal of the court to give this charge should not be considered because the sixty days first allowed had expired before the court made the order granting the additional time. The court, on motion of appellant, entered an order correcting this entry stating that the time first allowed had not expired when he granted the second. This, the State insists the court had no authority to enter at the time he did so. This we do not deem it necessary to discuss, for in a felony case it has never been held that it is necessary to preserve a special charge requested by bill of exceptions, where the record discloses itself that it was presented to the court and requested to be given in ample time. This record discloses that two special charges were presented to the court asking him to submit to the jury for their determination the question of whether or not Barrett was an accomplice, and the court refused to give either of them. Again, it is said that in the bill of exceptions, if we consider it, it does not state any reason why the special charge was called for. If it was not necessary to take a bill of exceptions and have it entered of record, of course whether or not it is sufficient is immaterial.
The next ground is that in the motion for a new trial this question *Page 561 is not sufficiently raised for us to review it. The motion for a new trial alleges: "Because the verdict of the jury is contrary to the law and the evidence, and is not supported by the evidence submitted on the trial hereof, because the only testimony against this defendant of an incriminative character was the testimony of Claude Rice, alias Floppy, and Frank Barrett, both of whom were accomplices and particeps criminis, and the testimony of said witnesses was not corroborated by the State by any evidence of any character, and because the court erred in refusing to submit to the jury special charge No. 4 requested by defendant, the said charge submitting to the jury the issue as to whether or not the witness Frank Barrett was an accomplice." This clearly notified the court that appellant's contention was that the evidence raised the issue that Barrett was an accomplice, and that the court erred in refusing to submit that issue to the jury.
The object and purpose of the law passed at the last session of the Legislature, requiring the courts to submit their charges to attorneys, and the attorneys to make their objections thereto before it was read to the jury, was that the attorneys engaged in the trial of a case must call the court's attention to any omissions or errors in the charge that the charge might be corrected at that time, and while the law does not require special charges to be asked, yet we think it the better practice and to be commended, and where the record discloses that the appellant not only called the court's attention to an omission to submit an issue raised by the testimony, but in addition thereto a special charge was prepared and presented curing the omission, if the court then refuses to submit the issue, and the appellant in the motion for new trial calls specific attention to his contention, as in this case, so as to direct the court's attention to the specific matter, if the omission was such an error as might and probably would injuriously affect the defendant, reversible error is presented.
The motion for rehearing is overruled.
Overruled.