Hall v. State

ON APPELLANT’S motion for rehearing

WOODLEY, Judge.

*556Appellan’ts motion for rehearing is predicated upon the contention that fundamental error appears in Paragraph 8 of the court’s charge, wherein it reads:

“Under the foregoing definitions and instructions you are charged that if you believe from the evidence beyond a reasonable doubt that the defendant, Dale Hall, either alone or acting with Waylon Gene Ballard, or either of them as a principal, as the term ‘principals’ is herein above defiined,” etc.

A number of objections were leveled at the court’s charge which were overruled and exception was reserved. None of the objections were addressed to Paragraph 8, and none suggested that the instruction therein contained permitted or authorized the jury to convict appellant if they did no more than find his co-principal Ballard guilty, nor was it suggested that Paragraph 8 or the instruction therein was upon the weight of the evidence.

The attack upon Paragraph 8 of the court’s charge made for the first time upon motion for rehearing in this court cannot be sustained.

We have attempted to make it clear that it is the duty of the defendant to inform the court of his objection to its form before the charge is read to the jury, and having failed to do so his right to object is waived. See Crossett v. State, 74 Texas Cr. Rep. 440, 168 S.W. 548; Grider v. State, 82 Texas Cr. Rep. 124, 198 S.W. 579; Gephart v. State, 157 Texas Cr. Rep. 414, 249 S.W. 2d 612; May v. State, No. 27,108, decided October 27, 1954, (page 582, this volume).

Appellant’s motion for rehearing is overruled.