On Rehearing
CARR, Presiding Judge.The appellant in his brief accompanying his application for rehearing has asked that in the event the application should be overruled the opinion of the court be extended so as to include certain facts and rulings of the trial court which do not appear in our original opinion. In compliance with this request, we extend our opinion so as to show the following:
On the question of the motion to quash the indictment, the appellant raised the point, both in the trial court and on appeal, that the effect of the motion of the State to amend the minutes was to amend the indictment without the consent of the defendant and over his objection, in violation of Section 253, Title 15, Code 1940. We hold that there was no error of the trial court in allowing said amendment without consent of the defendant and without giving ten days notice of the motion.
In his application for rehearing the appellant has raised the contention that under the oral and written charges of the court, if they be construed as consistent with each other, which was the construction we placed on them in our opinion, the verdict of the jury was contrary to the trial court’s instructions, and was on its face inconsistent and contradictory because appellant was acquitted under the first five counts, and that these oral and written charges made the same issue under all counts. We conclude that this contention is not well taken, and in so doing we point out that in addition to the portion of the lower court’s oral charge appearing in our original opinion, the following excerpts also appear in the oral charge:
“The State’s contention here is that the Defendant is guilty as charged, that he purposely, knowingly, and intentionally converted the funds which are involved to his own personal use and that he did so knowingly and that it was contrary to law.
“ * * * and he says further, that he is not guilty under any of the counts because he was under an honest belief that he was entitled to that money * * * that what he did he did honorably and under a bona fide and honest belief that the funds he drew were his. So that, briefly, is the issue, gentlemen, for you to decide.”
Written charges 9 and 13, given 'by the trial judge at appellant’s request, are as follows:
“9. The Court charges the jury that if the defendant, acted in the honest belief that he was entitled to ex officio fees in the amount of $200.00 and without any criminal intent, then he would be guilty of no criminal offense.”
“13. The Court charges the jury that you cannot find the fefendant (sic) guilty under Count Six of the indictment you believe beyond a reasonable doubt that the defendant knowingly and unlawfully converted to his own use or to the use of another person, money or funds belonging to, or under the control of Chilton .County, and if you have a reasonable doubt as to whether at the time of the conversion, the defendant acted in the honest belief that Chilton County was indebted to him for ex officio fees in the amount of $200.00, and that he was entitled to receive from Chilton County ex officio fees in said amount of $200.00, then you cannot find the defendant guilty under Count Six of the indictment.”
On cross examination the defendant testified that he had an agreement with Judge McCleod, another Probate Judge in the state, with reference to a suit to test the constitutionality of Sec. 29, Title 11, supra. In this aspect the record discloses:
“Q. And Judge McCleod had not started the suit and the State was still demanding that you pay that — A. Hadn’t collected it from the rest of them.
*634“Mr. Huddleston: We move to exclude that statement of the witness and ask that the Jury be instructed not to consider—
“The Court: That is excluded from your consideration, gentlemen, in making up your verdict. That is excluded from your consideration.
“Mr. Rives: I believe we- will reserve an exception to that, your Honor.”
Clearly, the answer which was excluded by the court was a voluntary statement, not based on facts that the witness was shown to possess. The ruling of the court in this particular was not error.
We are glad to extend the opinion in this manner, for this couit desires that appellant shall have full review before the Supreme Court should he desire to seek it. Application for rehearing overruled.
PER CURIAM.
Reversed and remanded on authority of Smith v. State, 61 So.2d 707.