In his motion for rehearing, appellant insists that the court has instructed the jury to find him guilty and that, because of such instruction, this court should reverse the case. If we should so construe the charge to the jury it would be our duty to do this. The question then turns upon the charge, as there can be no contention about the law involved.
There is no complaint that the court failed to properly define the law. No exceptions were filed to the court's charge whatsoever. The question is sought to be raised for the first time before this court as fundamental. It relates to Paragraph 5 of the charge, and arises because of the fact that the word "if" was omitted.
Considering the charge as a whole, there is no basis for a misunderstanding of what the court meant in the paragraph applying the law to the facts of the case. He directs them what to do, "after considering all of the above charge in all of its details." Regardless of the omission of the word "if" in two places, an oversight which is unexplained, it is, nevertheless, based on facts which the jury must find beyond a reasonable doubt, "as * * * herein before instructed."
We think that all other questions were discussed and properly disposed of in the original opinion.
The motion for rehearing is overruled. *Page 5