ON APPELLANT’S MOTION FOR REHEARING
DAVIDSON, Judge.In overruling appellant’s contention that prejudicial error was reflected in the action of the sheriff in giving the prosecuting attorney advice and the benefit of his judgment as to prospective jurors, we did not intend to lay down any fixed rule upon the subject. What we held was that under the facts here presented no error was reflected.
In his charge, the trial court applied the provisions of Art. 42, P.C., and instructed the jury to the effect that if they found that appellant killed the deceased by accident or mistake while attempting to rape her he would be guilty of murder with malice.
*280On the original submission of this case, appellant insisted, and again presses upon us, that if the charge was to be given he was entitled to have the law of murder without malice applied to that state of facts.
We again call attention to the fact that there was no exception reserved to the charge as to this matter. For that reason, the claimed error of omission in the charge is not before us for consideration.
In view of the fact that this is a death penalty case where the state’s case depended, as the trial court told the jury, “upon circumstantial evidence alone for a conviction,” we have again reviewed this entire record and remain convinced that a correct conclusion was reached originally.
Appellant’s motion for rehearing is overruled.