¶1On Rehearing.
¶2Upon original consideration we were of the opinion, and in effect held, that appellant’s written requested charge 5 was, in essential substance, sufficiently covered by, and included in, charges given to the jury at appellant’s request. We are now of the opinion, and hold, that the refusal of this written charge 5 was prejudicial error. It did not submit to the jury a question of law; because what was “an actual living together in a state of adultery or fornication” was fully and accurately defined to the jury by the court. That fact, i. e., that definition, was what caused us, in the first instance, to be of the opinion that it was not error to refuse this written charge 5.
¶3But the evidence in the case was of a peculiar sort to especially demand that the jury have all the light, possible and proper, on how to consider same with regard to the law appertaining. What we are trying to say is that this charge 5 was particularly apt in view of the evidence in this particular case. Its substance may have been, technically, included in other charges given, but, if so, we are persuaded, upon further consideration, that the jury, composed of laymen, would never have surmised as much.
¶4It results th'at we are of the opinion the judgment of conviction should be reversed because of the refusal of appellant’s written requested charge 5. And it is so ordered.
¶5Application- for rehearing granted; judgment of affirmance set aside; the judgment of conviction reversed; and the cause remanded.