The majority opinion concedes this to be a case purely dependent upon circumstantial evidence and that a charge on that subject should have been given. But it is asserted that the error is not reversible because the evidence is so strong that the jury were bound to convict, therefore error is protected by terms of article 743, Code of Criminal Procedure. I do not believe that because the evidence is strong the court is justified in not charging the law of the case. If this be true, then the court need not charge any phase of the law at all if the facts show strongly or even conclusively the guilt of the accused. This can not be correct under our statute, which requires the court to give in writing a charge on the law applicable to the facts whether requested or not. Art. 735, C.C.P. Appellant reserved his exception in motion for new trial. This is sufficient by the wording of the statute. C.C.P., art. 743. It has been always held to be fundamental error not to charge on circumstantial evidence whether excepted to or not. White's Annotated C.C.P., sec. 813, where a great number of cases are cited; also Branch's Crim. Law, secs. 202-203. If this universal rule has been changed, it is by reason of the fact that article (C.C.P.) 743 requires exception to be taken during the trial or on motion for new trial. Exception was duly reserved on motion for new trial by appellant. But my brethren conceding this to be the law, say it is not error because they find the facts to be sufficient to sustain the verdict, and that the jury ought to have found the same verdict had the law been given. I do not know what the verdict would have been under a charge giving the law. I do not care to write further. The affirmance is in the face of the law. The judgment ought to be reversed.
[Rehearing denied June 27, 1913. — Reporter.]