
    Henry McGrew v. The State.
    1. Pbactice—Charge oe the Court.—However slightly an insufficient or erroneous charge of the court may tend to injure the rights of the defendant, it is cause for reversal if excepted to at the proper time.
    
      2. Same—Alibi.—When the defense relied upon is alibi, it is the duty of the court to explain its nature and character to the jury.
    Appeal from the District Court of Fort Bend. Tried below before the Hon. W. H. Burkhart.
    The conviction in this case was based upon an indictment charging the appellant with the rape of Patsey Henricks, a female child, under the age of ten years.
    The jury found him guilty of an assault with intent to commit rape, and assessed his punishment at four years in the penitentiary. The parties were colored people.
    
      Mitchell & Peareson, for the appellant.
    H. Chilton, Assistant Attorney General, for the State.
   White, P. J.

At the time the charge of the court was given to the jury the appellant excepted to the same for insufficiency, and his hill of exceptions is incorporated in the record. The rule is that whenever exception has been taken to the charge and on examination the charge is found insufficient, the fact that the exception was taken promptly and in time will necessitate a reversal, however slight may appear the tendency to injure the defendant’s rights. Code Crim. Proc. art. 685; Vincent v. State, 9 Texas Ct. App. 303; Whaley v. State, 9 Texas Ct. App. 305.

In the case before us the defense was solely an alibi. We examine the charge in vain for any instruction to the jury based upon this defense, or any instruction at all connected even remotely with it save in so far as the reasonable donbt of guilt might embrace it. The rule is that when alibi is the defense relied on solely, it is not only competent but proper for the court to explain to the jury its nature and character. Deggs v. State, 7 Texas Ct. App. 359.

Because the charge df the court failed to explain the law applicable to the sole defense interposed, and the same was excepted to at the time, the judgment is reversed and the cause remanded.

Reversed and remanded.  