¶1On Petition to Rehear.
¶2A petition to rehear has been filed herein in which it is insisted that the defendant be given credit for the time he has served in jail on the sentence imposed by the jury. This ground of the petition is sustained, and the judgment of the lower court will allow this credit.
¶3The other insistence is that under the authority, of State v. Missio, 105 Tenn. 218, 58 S. W. 216, the judgment of the lower court should be reversed. In the present case the jury returned in open court and requested further instructions as to whether or not they might fix a less punishment than that provided by the general written charge of the court, and thereupon the trial judge *395wrote out and delivered to the jury a supplemental charge that under, the indictment they could convict the defendant of an attempt to commit a felony. In State v. Missio, supra,the district attorney general wrote out a written request which he submitted to the trial judge, who pronounced it accurate and applicable, and thereupon the district attorney general read this special request to the jury with the approval of the trial judge as a part of the charge of the court. This was held to be error, as it had the effect of giving the trial judge’s endorsement to the matters of law presented by the prosecution.
¶4The petition to rehear is denied, except the defendant is allowed the time he has served on his sentence. ■