The correctness of our opinion in holding the charge set out therein erroneous but harmless is assailed. We again copy the charge, italicising that portion criticised.
"In this case the witnesses, John Worley, L.L. Blaylock, Gus Newton, Bill Meredith, Rufus Milligan and Cal Gregory, have testified to certain facts indicating the presence of Mike Nichols and B.W. Walker in the town of Thorndale on the afternoon preceding *Page 63 the night of the alleged theft and at times, places and under circumstances when the defendant was not shown to have been present, and to the flight of said B.W. Walker and Mike Nichols.
"Now this testimony was permitted for the purpose of enabling you to determine whether or not the property described in the indictment was acquired by the said B.W. Walker and Mike Nichols under such circumstances as that the acquisition thereof comes within the meaning of the term theft, and as to whether or notthe said defendant, Raymond Allison, knowing it to have been soacquired, received said property from the said B.W. Walker andMike Nichols, and if you consider such testimony at all, you willconsider it for no other purpose than that herein mentioned."
Whether proper or not to limit the testimony of the witnesses named it would affect appellant's right if the limitation given was injurious to him. The charge condensed and paraphrased means, "Certain witnesses (naming them), have testified to facts which are not shown to have been known to Allison; although he may not have been aware of these circumstances you may consider them in determining whether he knew the property had been stolen, and received it with such knowledge; you may also consider it in determining whether Walker and Nichols stole it."
Counsel for appellant directly called the court's attention to the error in the portion of the charge italicised by the following objection filed at the proper time.
"Defendant objects and excepts to that portion and paragraph of the court's main charge wherein the court attempts to limit the testimony of the witnesses Blaylock, Worley, Newton, Meredith, Milligan and Gregory for the reason that the same expressly authorized the jury to consider evidence transpiring in the absence of the defendant and of which no knowledge has been brought home to him and by which he was in no wise bound in passing upon whether or not defendant knew the property alleged to have been received and concealed by him had been acquired under such circumstances as that the acquisition thereof comes within the meaning of the term theft. Defendant tenders his special Charge No. 2, in conformity herewith."
The special charge referred to in the objection was a copy of the charge given by the court, but omitting the italicised portion. Thus in two ways was the court's attention directed to the particular part of the charge considered by appellant as objectionable. The special charge requested, following the specific objection, amounted to nothing more than saying to the court, we make no protest against the first portion of your charge, but believe the latter part should be omitted. Upon reconsideration we have reached the conclusion that we were in error in holding the charge harmless. It authorized the jury to consider against appellant evidence which could not be appropriated to that purpose in the absence of his knowledge. To what extent the *Page 64 jury may have availed themselves of the privilege thus extended is impossible for us to know.
The error calls for granting the motion for rehearing, which is ordered; the judgment of affirmance is set aside, and the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. June 25, 1924.