The issues of law and fact in this case are identical with those in the case of A. L. Garrett v. State, No. 11,881, this day decided, in an opinion handed down on motion for rehearing. The discussion in said last-mentioned opinion sufficiently and fully disposes of all contentions made in this case with the exception that in the instant case it is claimed that proper exception was made to the quoted portion of the charge appearing in the opinion in No. 11,881, referred to above. The exception is as follows:
"The defendant excepts to paragraph '2' of paragraph 'II' of the court's charge, for the reason that in sentence No. '(1)' the court failed to state that the property had to be acquired by a person *Page 235 other than the defendant, and by virtue of such fact the jury might be mislead and justified in assuming or believing that they could find defendant guilty of the second, third, or fourth counts of the indictment, even if defendant himself had stolen the car."
In applying the law to the facts, the court in the instant case followed the allegations of the indictment and required the jury to believe, beyond a reasonable doubt, that the appellant fraudulently received from some person or persons to the grand jurors unknown, the automobile in question. No such application of the law was made in the case of Kyle v. State,217 S.W. 943, declared by the appellant to be in point and relied on by him for a reversal of this case. The substance and effect of the appellant's contention, as set out in his motion for rehearing, is that the court's charge did not follow the allegations of the indictment and that the jury might have convicted the appellant if the property was received by him from anybody. We do not regard the exception set out above as sufficient to call the court's attention to this point, but giving it this effect, there is no merit in the contention for the reasons set out above. This being the only point properly presented for review, and believing there is no merit in it, the motion for rehearing is overruled.
Overruled.