The youthful attorney for the appellant has filed a motion for rehearing, if we may call it such, much out of the ordinary. While the nature of the instrument appears to be inexcusable it may well be accounted for and clearly indicates the wrong view which one may have as to the purpose of a motion for rehearing. This court considers seriously and with full appreciation every helpful expression presented in a motion for rehearing, whether by the State or by the appellant, and we regret that, even though counsel has demonstrated a seriousness of purpose, he has devoted none of the seven pages and more to a helpful discussion of the questions involved in the case. We do understand from it, however, that he means to complain because this court did not sustain his contention that his special requested charge on the affirmative defense should have been given by the trial court. We have, therefore, in the *Page 238 serious consideration of this old negro man's case, gone fully into the record, re-read all of the testimony and reconsidered the entire record. We find no bills of exception, and no fundamental error is discoverable from the record.
While the rules of this court have not been complied with in presenting the one error complained of, we will, nevertheless, reiterate, as said in the original opinion, that the evidence wholly fails to connect the prosecuting witness with the burning of the house. The fact that he was personally present in bed asleep when the house was discovered on fire; that he was physically able to burn the house as argued; that it had insurance recently taken out in an amount much less than the value of the house; that his mother occupying a part of it had a narrow escape with her life and lost $250.00 in money, all of which was undenied in the record before us, certainly do not present facts and circumstances which would call for an affirmative charge in behalf of the defendant as requested by him. So far as it is possible to do so, this court has not permitted appellant to suffer because his attorney has not complied with the established rules. We have considered his requested instruction and find nothing in the record to even suggest it to the trial court.
The motion for rehearing is overruled.