¶1 ON MOTION FOE REHEARING.
¶2 June 13, 1900.
¶3 At a previous day of this term the judgment in this case was affirmed, and now comes before us on appellant’s motion for rehearing. We note appellant insists that the trial court erred in refusing to give the following specially requested charge: “Even if from the testimony you should find that defendant took the property as charged in the indictment, and you further find that said property was taken without and against the consent of Charley Howard, yet if you find and believe from the testimony that the door of the granary was open, and defendant made the entry through the open door, or if you have a reasonable doubt as to whether the door was open, and the entry thus made, then, in any event, you should acquit defendant.” The original opinion indicates that this charge was substantially given in the main charge of the court. A careful review of appellant’s motion, together with this assignment and the authorities supporting the same, constrains us to believe appellant’s contention is correct, that the court erred in refusing to give said special charge. Appellant’s evidence clearly shows that the door of the granary was open. If it was, then appellant has the right to a distinct substantive charge upon the law presenting his defense.
¶4*6 The negative as contained in the charge of the court is not sufficient. We therefore hold the court erred in refusing to give said charge, and for this reason the motion for rehearing is granted and the judgment reversed and cause remanded.
¶5 Motion granted. Reversed and, remanded.