Conviction is for misdemeanor theft, punishment being by fine of $25.00 and thirty days' confinement in the county jail.
By the testimony of an accomplice the state made a complete case, and supported the accomplice by ample corroborating testimony; in fact, a case was made out against appellant by the non-accomplice witnesses.
The charge upon accomplice evidence given by the court was erroneous. Brown v. State, 57 Tex.Crim. R.; Anderson v. State, 95 Tex.Crim. R., 254 S.W. 986; Abbot v. State,94 Tex. Crim. 31, 250 S.W. 188. The instruction was excepted to and three special charges upon the subject were requested. Two were refused and one given. Appellant complains at the refusal of the two. It would have been improper for the court to have given all of them. The one given sufficiently presented the matter. No exception was reserved to the ones refused either by notation on the charges themselves over the judge's signature, nor by formal bills of exception presenting the point. Exceptions must be preserved in one of such ways before the point will be reviewed. Linder v. State, 94 Tex.Crim. R.,250 S.W. 703.
The accomplice testified that appellant came by witness' house and the two went to a swimming resort; while on the way there that appellant said he was going to get two tires that night; that appellant did take two tires and rims off another car and put them in appellant's car. Exception was reserved because in response to questions from the state the accomplice testified that he had no intention of stealing any tires when he left home nor at any other time. In view of the other facts testified to by the accomplice no error occurred in admitting the evidence complained of, but if so the matter was of such slight importance we would not hold it to call for reversal.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.