Appellant insists that under the present practice, it is not necessary that the record show that there was an exception to the refusal of a special charge in order to require this court to review the action of the trial court in refusing the request. It is believed that in so contending, the distinction between the practice in civil cases and that in criminal cases has not been given due consideration. In the old code touching the request for a special charge in civil cases, the declaration is made that when authenticated and filed they become a part of the record "subject to revision for error by the Supreme Court in the same manner as if regular bills of exception had been signed." (Paschal's Digest of Laws, Vol. 1, p. 141, Art. 216, Act of May, 1846.)
In a criminal case the statute read: "The general charge given by the court as of either party, shall be certified by the judge, and in case of appeal, constitute a part of the record of the cause. (Paschal's Digest of Laws, Vol. 1, Art. 3062, p. 527.)
In the Revised Statutes of 1879. Article 1320 is identical in its terms with Article 216, supra, in Paschal's Digest; and Article 686 is identical with Article 3062 (Paschal's Digest), which has been quoted above. In other words, in civil cases the statute in terms stated that no exception to the refusal of the special charge need be noted, *Page 323 while in criminal cases that phase of the statute is omitted. In the Revised Statutes of 1911 touching civil cases the language used in Article 216 and Article 1320, supra, was carried forward and in the Code of Crim. Proc., of 1911, the language embraced is that which is quoted above from the old Code of Crim. Proc. (Art. 3062, Paschal's Digest, supra.)
In the year 1913, by Chap. 59, the civil statutes (Art. 1974) with reference to special charges was amended and the declaration that the special charge should be subject to review without exception thereto was omitted. At the same time Article 2061 was embraced declaring that the "ruling of the court in giving, refusing or qualifying instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles."
Construing Chap. 59 supra, both the Supreme Court and the Court of Civil Appeals held that to require the review of the refusal of the trial court to read a requested charge to the jury, it was imperative that an exception be reserved at the time and preserved by bills of exceptions. Railway v. Dickey, 187 S.W. Rep. 188; Thorne v. Dashiell, 189 S.W. Rep., 987 and cases cited. Unless we misinterpret the rule as declared by this court, it has from the beginning insisted that it was not authorized to review the refusal of a special charge in the absence of an exception. In the case of Phillips v. State, 19 Texas Crim. App. 165, Presiding Judge White stated the rule in these words:
"We do not think it is contemplated by the law (Code Crim. Proc., art. 686) that a defendant in a criminal trial, desiring to except to the charge of the court or to the action of thecourt in refusing a charge, should do so at the very time the charge is given or refused. To require him to do this would be placing before him the alternative of passively and silently submitting to what he conceives to be an error, or to take the risk of creating against himself a prejudice in the minds of the jury by expressing a dissatisfaction with the law as given them in charge by the court. We think a proper and usual practice is to allow the defendant to take his bills of exceptions to the charge of the court, and to the refusal of charges, after the jury has retired from the box. In civil practice charges given bythe court are not, as in criminal cases, required to be exceptedto specially, but are regarded as excepted to without thenecessity of taking any bill of exceptions thereto."
It is our understanding that throughout the history of this court, this rule has been applied and the distinction between the rules in civil and criminal cases with reference to an exception to the refusal of a special charge has been recognized. Special note of it is taken in Byrd's case, 69 Tex.Crim. Rep., which was decided before the passage of the Laws of 1913.
Attention is directed in Byrd's case, supra, to Articles 1318 and *Page 324 1363 of the civil statutes establishing the rule of practice in civil courts to the effect that an exception to the refusal of a special charge is not necessary. This language follows in the opinion:
"However, the reverse of this is the rule in criminal cases, and made so by legislative enactments. As to why they prescribed a different rule is not for us to theorize over, but merely to obey, if they have done so. And by reading the Code of Criminal Procedure it will be seen that they have provided that the charge of the court shall not be regarded as excepted to, but it requires specific complaint to be made, and if this is not done we are without authority to review the charge of the court. Article 743 of the Code of Criminal Procedure provides that no criminal case shall be reversed by this court on account of error in the charge of the court unless the charge was excepted to atthe time of the trial or in the motion for new trial, and theerror pointed out."
See also Ryan v. State, 64 Tex.Crim. Rep.; Barrios v. State, 83 Tex.Crim. Rep..
Judge White, in his Ann. Code of Crim. Proc., cites many authorities on page 550, in Art. 845, emphasizing and, as we understand them, supporting the conclusion stated above that at no time in the history of this court has the refusal of a special charge been properly the subject of review in the absence of an exception to its refusal. Formerly, certain character of exceptions were required to be made at the time of the trial; others were reviewable if made in the motion for new trial. See White's Ann. Code of Crim. Proc., p. 549, sec. 844; also Bailey v. State, 45 S.W. Rep. 708; Todd v. State, 44 S.W. Rep. 1096; Magee v. State, 43 S.W. Rep., 512.
By the Acts of 1913, Chap. 138, Articles 735, 737 and 743 were amended, and Article 737a was added. The effect of this amendment was to require that the charge of the court be read to the jury in advance of the argument and that before it was read to the jury, it should be examined by counsel for the accused and his objections to it, if any, presented, as well as his requested charges, to the end that the court might correct any errors or omissions in his charge before it is read to the jury. Art. 743, as amended, contains this language: "All objections to the charge and on account of the refusal or modification of special charges shall be made at the time of the trial." Article 737a requires that objections to the charge be presented before it is read to the jury.
In the year 1917, Chap. 59, Acts of the thirty-third Leg., supra, was amended in such a manner as to restore the practice in civil cases with reference to special charges that prevailed before the enactment of Chap. 59, namely, that in civil cases a special charge authenticated as having been presented in proper time and refused should be subject to review without bill of exceptions.
Counsel for appellant argues that by virtue of Article 744, Code *Page 325 of Crim. Proc., the amended civil statute prescribes the rule applicable to criminal cases and obviates the necessity of the notation of any exception to the refusal of a special charge. Article 744 reads thus: "On the trial of any criminal action, the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, order or charge of the court or other proceedings in the case; and the judge shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal."
This article was in the old code and has never been changed. It is our conception of it that it prescribes merely the method of preparing bills of exception and presenting them and refers to the civil statutes for no other purpose. The requisites of bills of exceptions are prescribed in Articles 2058 and 2059 of the Revised Civil Statutes, and in the same chapter is found the procedure for presenting them. It must be assumed that in the original enactment of Chapters 59 and 138 of the Acts of the Thirty-third Legislature, and in amending Chap. 59, the failure to amend Chap. 138, the Legislature intended that the distinction between the practice in civil cases and criminal cases with reference to special charges, and exceptions thereto as reflected by previous Legislatures and by judicial interpretation should continue to exist, also that in civil cases it was deemed sufficient that the special charge become a part of the record and be subject to review without bills of exceptions, but that this was not sufficient in criminal cases; therefore, the rule as originally prescribed in Chap. 59, Article 1913, with reference to civil cases was abandoned by the enactment of Chap. 177 of the Acts of 1917.
We are referred by counsel for appellant to Goldstein's case, 73 Tex.Crim. Rep., 166 S.W. Rep., 151, in support of the view that an exception to the refusal of a special charge has not heretofore been regarded as necessary. In Goldstein's case there was a special charge duly presented, refused and exception reserved. There was a question raised with reference to whether the bill had been filed in time. The court held that the exception was sufficient and intimated that the court had not theretofore held an exception necessary. The question at issue did not call for such a declaration. Moreover, it was conflict with previous decisions of this court, notably, Phillips v. State, supra, from which we have quoted above, together with others embraced in the sections of White's Ann. Code of Crim. Proc., to which reference is made above.
We believe that we have pointed out before that there is a reason for the difference in the practice. In civil courts, an assignment of error points out the reason upon which the appellant contends that there was error in refusing his special charge, and in the absence of such assignment of error either embraced in the motion for new trial or otherwise, the civil courts of appeals are not required to and will *Page 326 not review the action of the trial court in refusing to read to the jury the requested charge. See Barrios v. State,83 Tex. Crim. 548; 204 S.W. Rep. 327. In criminal cases, neither assignment of error nor motion for new trial is required. The only means available to this court to determine that the refusal of a special charge was objectionable, will be by some indorsement on or relating to the charge, made by the trial judge, or bill of exceptions showing that the action of the court thereon was made the subject of an exception. To re-state the matter, on appeal in a civil case, it is incumbent upon the appellant to make known to the court on appeal his complaint of the refusal to read his special charge by his assignment oferror, and in a criminal case, there being no assignment of error provided by law, there exists a reason for the distinction made by the Legislature in the enactment of Chap. 177 of the Acts of 1917 and Chap. 138 of the Acts of 1913.
It is necessary that in some appropriate manner the record make known to this court that the refusal of a special charge was not acquiesced in. The trial court frequently, responding to a request for special charges or to exceptions to the main charge, so amends his instructions to the jury as to obviate the criticisms. In such cases the written exceptions to the main charge and the special charges are still parts of the record, and unless the record in some way reveals to this court that the action of the trial court in refusing the special charge is intended to be made the subject of complaint on appeal, it will not be given consideration. Several expressions of the court to this effect are found in Vernon's Texas Crim. Stat., 1922, Sup. Vol. 2, p. 2505. Others will be found in later reports not annotated at this time.
In deference to the earnest oral argument of counsel and the motion for rehearing, which reveals much research and thought, we have reviewed the record very carefully but are of the opinion that the former disposition of the case is correct.
The motion for rehearing is overruled.
Overruled.