ON APPELLANT'S MOTION FOR REHEARING.
BEAUCHAMP, Judge.In his motion for rehearing appellant contends that the court committed error in his charge to the jury, as follows:
“The mistake as to fact which will excuse, under the preceding paragraph, must be such that the person so acting under a mis*257take would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.”
The grounds of the objection seems to be that the charge assumes that the defendant had committed an offense. It will be observed, however, that the foregoing paragraph is an abstract statement of the law. Following this the court applied the law to the facts in this language:
“Therefore, if you believe from the evidence that at the time the defendant Ellis Phillips, Jr., married Patricia Ann Aaron, if he did, he was laboring under a mistake of fact as to having been divorced from Billie Jean Phillips, Jr., and such mistake of fact did not arise from want of proper care on the part of the defendant, or if you have a reasonable doubt that such are the facts, you will acquit him and say by your verdict “Not Guilty.”
It appears from the entire record that the court was quite liberal in submitting the issue as a fact to be found by the jury. We find no fault with the charge as given which could in any way harm the appellant.
The motion for rehearing is overruled.