State v. Vincioni

ON REHEARING

WATSON, J.

By the opinion originally handed down, we reversed the judgment solely on the ground that the court erred, at the close of the state’s case in chief, in overruling appellant’s motion for a directed verdict. By motion for rehearing, the state makes the point that such error was waived when the appellant, instead of standing upon it, offered testimony in his defense. This point is now raised for the first time. In the original briefs the state not only failed to raise it, but joined in the discussion of the merits of the assignment.

Appellee cites 17 C. J. 339, 38 Cyc.…