Evidence was adduced (m the trial tending to show that, at the same time and place that the defendant took the horses mentioned in the indictment, he took a horse not mentioned in the indictment, the property of one Morgan. In the charge to the jury, the court failed to instruct them as to the *616purpose of such testimony, and that they could not convict the defendant of the theft of any other horse than those named in the indictment. There was no exception made to the charge, at the time of the trial, because of such omission, nor did the defendant ask a special charge with reference thereto.
Opinion delivered June 13, 1888.It was unquestionably error to omit instructing the jury as above indicated, and had such error been excepted to at the trial, the conviction'would have to be set aside. But it has never been held that such an omission in the charge is fundamental error, which is necessarily fatal to the conviction. Where such error is for the first time called to the attention of the trial court in a motion for new trial, this court will not rever ?e because of it, unless it appears from the whole evidence adduced on the trial that the defendant’s rights may have been injured in consequence of it. (Carter v. The State, 23 Texas Ct. App., 508; Davis v. The State, Id., 510; Mayfield v. The State, Id., 645; Alexander v. The State, 21 Texas Ct. App., 406; Holmes v. The State, 20 Texas Ct. App., 509; Kelley v. The State, 18 Texas Ct. App., 262; House v. The State, 16 Texas Ct. App., 25.) After a careful consideration of the whole evidence, it does not appear to us that the defendant could probably have been injured in his rights by reason of the failure of the court to give the instruction mentioned; and we must hold, therefore, that said error in the charge is immaterial and can not operate to reverse the judgment.
In the particulars in which the charge of the court was excepted to we find no error. We regard"the charge, when considered as a whole, excepting the error of omission above discussed, as a full, fair and correct exposition of the law applicable to the facts proved. That the conviction is amply sustained by the evidence there can be no doubt.
Finding no material error in the conviction, the judgment is affirmed.
Affirmed.