There is one matter presented in motion for rehearing which will be noticed. It is contended in this motion that this court erred in failing and refusing to pass upon and not sustaining first paragraph of the motion for new trial in the court below, as pointed out in his written brief on the original submission. The statement under this proposition is this: "Before the charge was read to the jury appellant objected to the portion of the charge complained of, and excepted to the overruling of his objection to the same, and also asked a special charge, which will be found on pages 25 and 26 of the transcript, and brought forward in bill of exceptions No. 5." It is also contended that the statement in the original opinion, as follows: "There were no exceptions taken to the court's charge at the time it was read to the jury," is not borne out by the record, and that a close inspection of the transcript will show an exception was made to the court's charge before it was read to the jury. We find the original opinion is correctly quoted, in stating there was no exception taken to the court's charge before it was read to the jury. Going to the bill of exceptions referred to, I think counsel misconstrued the full import of the language of the bill. If he did not, then this court did. The bill is No. 5, and is found on pages 34 and 35 of the record. It begins by stating, "Be it remembered, that upon the trial of the above entitled and numbered cause, the defendant presented to the court written instructions, as follows, towit:" Then follows the requested instruction, unnecessary to copy, which was refused by the court. Then follows this language: "Whereupon the defendant then and there in open court, and before the court read his charge to the jury, excepted to the action of the court in so refusing to give said instructions, and now tenders this his bill of exception No. 5." We are still of the opinion that there was no exception reserved to the court's charge. The exception recites that the special charge was asked and refused, and it was asked before the court's charge was read to the jury, and refused by the court, and he took exceptions to the refusal to give this special charge. This is the exact condition of the record, whatever conclusion may be reached by the court or counsel. We understand that an exception to the refusal to give a special charge is not an exception to the court's charge and its errors or supposed errors, as required by the statute. The exception to the court's charge before being read to the jury is what the statute requires. The exception to the refusal to give requested instructions is a different proposition. But this much has been written simply to keep the record straight and show the matter as it actually occurred, or as actually shown at least by the record. If there were any exceptions taken to the court's charge before it was read to the jury, there is nothing in the record to verify it, and we are not informed so far as the record is concerned that *Page 328 there were any such exceptions. Of course, where exceptions are taken to the charge before being read to the jury, this must be verified in some way so as to inform this court such procedure actually occurred. Verification of matters of that sort is required. However that may be, even if an exception had been reserved to the court's charge, in addition to the exception to the refusal to give the special instruction, it would present no reversible error inasmuch as we are of opinion the court fully charged the law applicable to the case and as favorable as the facts required.
We are of opinion that the motion for rehearing shows no reason why the original opinion was wrong, and, therefore, the motion is overruled.
Overruled.