¶1Appellant and Manuel Ingle were jointly indicted for the theft of a calf, the property of L. J. W. Edwards, and upon severance appellant was placed upon trial and convicted.
¶2Both parties called for the 66 rule,” and the witnesses were sworn and placed thereunder. One Huckols, who was in attendance on the court as a juror, was present at the trial, heard the testimony of Mrs. Rummel, a witness for defendant, and informed counsel for defendant, while she was testifying or just after she had finished, that he knew some material facts in connection with her testimony. Counsel for appellant then offered 1'Tuckols as a witness. The Stated objected because he had been present, hearing the testimony of the witnesses, and had not been under the rule, and counsel for appellant stated that neither he nor his client was ever advised that Nuckols knew any facts, and especially the facts proposed to be proved by him. The learned judge rejected the witness and the court took a recess for the space of two hours, awaiting the arrival of *562another witness. At the expiration of the two hours court met and the trial proceeded with the examination of the witnesses. After one witness had been examined for defendant Fuckols was again offered and the State again objected, also upon the ground that after hearing that ISTuckols was a material witness for defendant and his counsel had neglected to have him placed under the rule, but permitted him to remain in the court room and hear the testimony of other witnesses to testify besides Mrs. Rummel, the court sustained the objection. In this there was no error. This disposes of the first and second assignments of error.
¶3The third assignment of errors is: “The court erred in not giving the special charge asked by defendant.” The charge reads: “The court instructs the jury that if they believe from the evidence that the defendant, Charlie Rummell, was aiding and assisting Manuel Ingle in gathering and driving the cattle of John House, and that they took a calf, the property of Edwards, and that the said Rummell at the time honestly thought that the calf was the property of John House, and took it in accordance with such belief, he is not guilty of theft although Manuel Ingle may have known that the calf was not the property of John House. And if the jury have a reasonable doubt on this point, arising out of the evidence, the defendant, Charles Rummell, is entitled to the benefit of the same, if in fact they have a reasonable doubt as to the guilty intention of the defendant.” This charge was very clearly required by the facts of" this case, and, if not given elsewhere in the charge, this judgment must be reversed. The learned judge, however, refused this charge, because, he says, it is embraced in the general charge, and by referring to the latter clause of the fifth paragraph of the charge it will be seen that the principle contained in the special charge is clearly, affirmatively and pertinently given to the jury; hence there was no error in refusing to give the special charge.
¶4The last error assigned is that the court erred in overruling the motion for new trial, because the verdict is not supported by the evidence. We do not believe this ground well taken, and this court would not be warranted in reversing the judgment in this case for want of sufficient evidence to support the verdict.
¶5The judgment is affirmed.
¶6Affirmed.