The State has filed a motion for rehearing, upon the ground that this court erred in holding that the trial court erred in failing to give special instruction number 1, asked by appellant. Only the critical portion of the requested instruction is copied in the motion for new trial: "If you further find that the defendant did not know the contents of said statement, if any, or if you have a reasonable doubt as to whether defendant knew the contents of the same, you should acquit the defendant." The State contends that that portion of the requested instruction is practically the same as that given by the court, which was in the following language: "If the defendant did not know that the alleged false statements in said affidavit were contained in the same, or if you have a reasonable doubt as to whether he did, you will acquit him." The contention is that the two charges are practically similar. This did not state the question contended for by appellant. The requested instruction is given in full in the original opinion, and we deem it unnecessary here to repeat it. An inspection of the charge compared with that given by the court, in our judgment manifests the fact that the two charges are not the same. The court's charge was very general in regard to a mistake of fact, inadvertence, etc., if that is the ground upon which it is sought to place it. As before stated, the court's charge is very general indeed on the question of mistake and want of knowledge as to the contents of the affidavit alleged to be false. The requested instruction, in our judgment, pertinently called the matter to the attention of the court, and even if that charge was not sufficient, it did call the attention of the court to the weakness of the general charge, *Page 304 and exception was reserved both to the general charge and the refusal to give the special instruction. The original opinion collates the facts in regard to this matter. Defendant testified, as did Will Porter, that the affidavit was not read over to defendant at the time he signed it. The issue was sharply drawn at this point between the State's testimony and that for the defendant, there being the clerk as a witness for the State, and the defendant Will Porter for the defense on this crucial issue in the case. The affidavit, as before stated, had appellant in the attitude of swearing that A.J. Richardson signed this order, when under the testimony of defendant and Will Porter, the clerk asked no such question, and that it was not a matter of investigation at the time the license was obtained. We repeat that everything said by witness could have been true in regard to appellant seeing the order signed, and he could have sworn to that without being guilty of false swearing, for he did see Miss Richardson sign it. The order as set out in the affidavit, and made a part of the original opinion, has appellant in the attitude of swearing that lie saw A.J. Richardson sign it. If appellant swore that he saw the order signed, and did not say that he saw A.J. Richardson sign it, and was not aware of the fact that the affidavit contained the statement that he saw A.J. Richardson sign it, unquestionably the jury should have had this matter pointed out to them clearly in the charge, because under that condition of things he would not be guilty of having sworn that he saw A.J. Richardson sign it; and that seems to be the crucial test of the case, and was evidently so regarded in the trial. The general charge of mistake of fact under this character of testimony is not sufficient, especially when exception was reserved to the charge given and the refusal to give special instructions. Certainly a party on trial for felony has the right to have the law applied fairly, correctly and pertinently to the issues made by the testimony. Because a portion of the special charge corresponded in part with the charge given by the court, would not deprive defendant of the right to have that portion of the charge which brought pertinently to the jury the issue involved. Whether or not this special charge was sufficiently accurate, it does point out the matter to the attention of the court, and the law should have been applied to that condition of fact. We seen no reason for changing our views upon the question, and the motion for rehearing is accordingly overruled.
Overruled.