The only complaint made in appellant's motion for rehearing is that the court erred in failing to give his special requested charge, in effect, that if the jury believed from the evidence that the appellant gave the whisky in question to the witness Conway, and that Conway did not pay for the same, or if they had a reasonable doubt thereof, they should acquit the appellant. Looking to the exceptions reserved to the court's charge we note that it is stated that the defendant excepts to the court's main charge for the reason that nowhere therein is the defendant's affirmative theory of defense adequately presented, and that the defendant in this connection requested that the court give defendant's special requested instruction No. 7. There was no exception *Page 255 to the charge because it did not submit to the jury any affirmative defense based on the proposition of a gift by appellant to the prosecuting witness, of the whisky in question. In our original opinion we assigned as a reason for not holding erroneous the refusal of the trial court to give special charge No. 6, that there was no exception taken in the court below to the refusal of this special charge, and that hence such refusal could not be considered by us. We see no reason for believing that the matter was incorrectly decided. This court has uniformly declined to consider matters of procedure such as this in the absence of an exception, which must appear either by notation upon the refused special charge, or by a separate bill of exception. It is not contended that an exception to the refusal of said special charge is before us in either form.
The motion for rehearing will be overruled.
Overruled.