At the recent Tyler Term the judgment in this case was affirmed. Motion for rehearing has been filed.
Appellant's attorneys present the matter from the standpoint of the written opinion in a very cogent and able manner, and the writer is inclined to believe that the original opinion does not correctly decide the matter therein discussed. In the former opinion the charge was treated from the standpoint of inconsistencies and incongruities in the charge, in that it was contradictory, but holding that these contradictions were not of sufficient importance to require a reversal. It will be observed by noticing the opinion that it is stated that the court charged the jury in the general definition of accomplice testimony that such testimony need only tend to connect the accused with the offense, whereas in the application of the law to the facts the jury were instructed that the accomplice testimony must show the defendant committed the crime. The general definition in the court's charge in regard to accomplice testimony was not sufficient wherein he instructed them that the accomplice testimony need only tend to connect the accused with the offense committed, but in reviewing the whole charge we held these contradictions were not of sufficient importance to require a reversal. Upon review of that matter we are satisfied that we were in error. The two charges were in direct conflict. One of them was correct while the other was totally incorrect as to the rule governing accomplice testimony. So to that extent we modify and change the former opinion. An inspection, however, of the bill of exceptions reserved by appellant to these charges show that this question was not suggested in the bill for a reversal. The only objection urged to this charge as stated in the bill, is as follows: "To which said charge of the court defendant excepts for the same reason assigned in the case of Oates v. State, 16 Texas Ct. Rep., 493, and tenders this his bill of exceptions No. 1." This is then the only ground urged why the charge of the court was wrong. An inspection of the court's charge in the Oates case shows that same was erroneous, because it failed to follow the rule laid down in quite a number of cases cited. An inspection of the record in the Oates case shows that it was reversed because the court failed to instruct the jury that before they could convict on accomplice testimony, among other things, the jury must find the evidence of the accomplice to betrue. In the charge in this case the court directly informed the jury that before they could convict they must find that the testimony of the accomplice is true. Therefore, we hold that the ground of objection urged by appellant is not well taken. The charge shows to the contrary. As this matter is presented we can not review the question discussed by the court in the *Page 400 former opinion. Quite a line of decisions (to which the writer did not agree), construing article 723, Code of Criminal Procedure, lay down the proposition that no error will be revised in regard to incorrect charges on appeal, unless they are pointed out in the trial court; that they can not be raised for the first time on appeal. We were in error in treating the charge from the standpoint in which we discussed it in the former opinion inasmuch as that question was not suggested. While the charge of the court was erroneous, still under the line of decisions construing said article 723, this court will not review those errors because not pointed out in the court below in any manner. The reason assigned for error in the charge in the bill of exception is not well taken, because the charge itself discloses the fact that the court did charge the jury that they must find the evidence of the accomplice to be true before they could convict.
As the matter is presented, the former conviction is corrected, and the motion for rehearing is overruled for the reasons stated.
Overruled.