"That is certain which is capable of being made certain."
The trial court made a mistake when he charged the jury on assault with malice, such not being charged in the indictment. He also charged on murder without malice, which was the only charge in the indictment. When the jury decided on their verdict, they found appellant guilty as charged in the indictment, not as charged in the mistaken paragraph of the court's charge. The indictment charging only an assault without malice, a reference thereto makes certain that appellant was found guilty of an assault without malice, and the trial court so construed it and correctly sentenced her to not less than one nor more than three years in the penitentiary.
Again, appellant's attorney read the charge and filed his only objection thereto as follows: "That same is not a proper charge upon the facts and the law applicable to the facts in this case, and nowhere submits defendant's affirmative defense of defense of defendant's mother or of her property."
Under the statute, Art. 658, C. C. P., this mistake in the court's charge should have been called to the trial court's attention prior to the reading of the charge to the jury. See Pocket Part (1946), Art. 658, Vernon's Ann. C. C. P., Vol. 2.
There is no mention made of such mistake, not even in the motion for a new trial, and I think an objection in this court for the first time comes too late and would destroy the purpose for which the statute was created.
I therefore respectfully dissent from the opinion of my brethren granting a rehearing and ordering a reversal of this cause. *Page 123