¶1 ON REHEARING.
¶2 December 12, 1908.
¶3 The judgment was reversed and remanded on two propositions at the recent Austin Term. The State files motion for rehearing alleging error on both grounds. The first was based upon the alleged error of the court giving certain charges, set out in original opinion. The second was based upon rejection of requested instructions asked by appellant. This charge is found also in original opinion. In support of the State’s contention in regard to the special charges given by the trial court, we are cited to the case of Rainbolt v. State, 51 Texas Crim. Rep., 153. An inspection of that case supports1 the contention of the State. The writer believes that while a bet may be made without express agreement, yet the charge" as given and set forth in the original opinion is on the weight of evidence. My brethren, however, take a different view and think it is not upon the weight of evidence, and sufficiently presents the matter mentioned in the charge, and is, therefore, correct. Following their views of the matter, the motion for rehearing will be granted upon that ground.
¶4 The second ground of the motion for rehearing is based upon what the State contends to be error in the original opinion holding that the court erred in refusing to give the requested instructions. My brethren are of opinion that this contention is also correct, and in accord with their views the motion will be granted on that proposition.
¶5*50 The writer believes that the facts authorize the instruction requested and refused, and that the instruction was directly pertinent to the issues and should have been given.
¶6 The motion for rehearing is granted, the reversal is set aside, and the judgment is affirmed.
¶7 Affirmed.