(Dissenting).
I am not in accord with the opinion granting the State’s motion for rehearing and affirming this case, because I believe that the authorities discussed in the original opinion are appropriate and controlling. If it was intended by the Legislature that Art. 666, C. C. P., should have the effect given to it by Judge Graves, I would not then consider the act constitutional. It is not within the power of the Legislature to say that this court shall not reverse a case where an individual has been plainly charged with one offense and tried for another, simply because it was not called to the attention of the trial court at a specific time. Such procedure would be in violation of the due process clause of the Constitution of the United States, and in considering the meaning of said article we must give consideration to this fact.
*122Neither do I believe that the conclusion reached in this case is in accord with the Moore case and the Gooden case, for it definitely overrules these two cases, and must be so understood. I believe the former holdings of the court on this subject to be sound and that we should follow them.
Therefore, I respectfully record my dissent.
ON MOTION FOR REHEARING.
DAVIDSON, Judge.Appellant vigorously insists that the rule announced in the case of Gooden v. State, 145 S. W. (2d) 177, 140 Tex. Cr. R. 347, to the effect that a charge which permits an accused to be convicted for an offense not alleged in the indictment is fundamentally erroneous, is applicable and controlling here, and that we erred in reaching the contrary conclusion.
It must be remembered that, although appellant excepted at length to the court’s charge, he did not reserve an exception thereto on the issue now insisted upon by him. Hence the question before us is not whether-the charge as given was merely erroneous in the particular mentioned, but whether same was so erroneous that a valid judgment could not be predicated upon a jury’s verdict rendered thereunder. Appellant’s guilt was made to depend upon a finding by the jury that he failed to stop after the collision. The failure to render all necessary assistance to the injured party was dependent entirely upon a finding by the jury that he failed to stop.
All the facts, including appellant’s admissions while testifying as a witness in his own behalf, show that he did not stop. Of course, appellant sought to justify his failure to stop; but, his excuse, or justification — which, we originally held, was ineffectual to accomplish that purpose — did not constitute a denial of the fact that he did not stop.
So, when the jury found that appellant did not stop, his guilt of the offense charged in the indictment was established. We are unable to bring ourselves to the conclusion that, although the jury, under the charge of the court, may have also found that appellant failed to render all necessary assistance to the injured party, this could have altered or changed his guilty status of the offense charged in the first instance, that is, of failing to stop.
*123In order for the rule announced in the Gooden case, supra, to be applicable to the instant case, the charge of the court would, of necessity, have to be given the construction that the the jury was authorized thereunder to find appellant guilty of failing to render all necessary assistance, that is, any assistance which the jury may have deemed necessary, without reference to whether he did or-did not stop after the collision. The plain wording of the charge is susceptible of no such construction.
Further distinguishing the rule announced in the Gooden case, supra, attention is called to.the fact that it is not a violation of the burglary statute— upon which the Gooden case was written — to merely break and enter a house; nor is that offense established by proof merely of a breaking and entry. The breaking and entry must be accomplished with an intent to commit the crime of theft or a felony. Such is not true of the instant prosecution, for here the offense was complete with the failure to stop.
We remain convinced that the charge was not fundamentally erroneous and adhere to the conclusions heretofore expressed.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.