John Burks v. The State, 24 Tex. Ct. App. 326

Willson, Judge. I. Defendant’s special plea of former conviction is in due form, and upon its face presents a valid bar to-the prosecution in this case. The trial judge properly, and under appropriate instructions, submitted the issue raised by said plea and the evidence adduced in support thereof to the jury, except that the jury were not instructed, as they should have been, that they must say in their verdict that the matters alleged in said plea were true or untrue. (Code Crim.

Proc., art. 712.) It has been repeatedly held that where a special plea is submitted to the jury the verdict must expressly determine whether the plea is true or untrue, and that an omission to so find is error for which the conviction must be set aside. (Smith v. The State, 18 Texas Ct. App., 329, and cases there cited.) It may be contended, however, that such omission is harmless and not reversible error where the evidence shows that the conviction pleaded was not for the same offense, but for an entirely different offense than the one for which the defendant was then on trial.

Were it not for the mandatory terms of the statute, requring the jury directly and expressly to state in their verdict their finding upon the plea, we would be inclined to so hold,- but we think it best to adhere to the plain words of the statute, and the decisions heretofore made construing it. In view of another trial of the case, we will say that in our opinion the special plea of former conviction was not sustained by the evidence.

Said former conviction was for attempting to pass a forged instrument in writing to a different person than the person named in this indictment, and, as the evidence conlusively proves, at a different time and place. The transactions were different, and constituted different offenses, although the forged instrument attempted to be passed was the same. The two attempts are as distinct and separate as would be two assaults committed upon different persons at different times and places, but with the same weapon. II.

Upon the trial the State proved, not only the attempt to pass .the forged instrument to the party alleged in the indictment, but also that the defendant attempted to pass said instrument, on the same day, but at a different time and place, to another person. This evidence was admissible to prove the defendant’s fraudulent intent with respect to the attempt for which he was on trial; but the court, in its charge to the jury, failed to restrict said evidence to the purpose for which it was admitted by proper instructions to the jury, which omission is reversible error, although not excepted to. (Washington v.

The State, 23 Texas Ct. App., 336; Maines v. The State, Id., 568; Davidson v. The State, 22 Texas Ct. App., 373; Taylor v. The State, Id., 530.) Opinion delivered November 23, 1887. III. It was not only proper, but it was the duty of the court, to construe the written instrument alleged to be forged, and to instruct the jury as to its legal effect had it been genuine. It was not error for the court to instruct the jury that the alleged forged instrument involved in this case would, if it had been genuine, have created a pecuniary obligation. IV.

It was not error to overrule the defendant’s objection to the admission in evidence of the alleged forged instrument. There was no material variance between the instrument alleged and that offered and admitted in evidence. The letter S before the figures §43.00, as it appears in the instrument set forth in the indictment, does not appear to be a part of said instrument, or to import anything. It certainly does not in any way affect the character of the instrument, and constitutes no part of its description. V.

It was not error to admit in evidence the statements made by the defendant to the witness Robert Burch, as the evidence satisfactorily shows that, at the time the defendant made said statements, he was not under arrest or in custody, but was a free man, and made said statements voluntarily. Nor was it error to permit the State to prove that the defendant was known in another county by a different name than the one he assumed in the county of the prosecution.

This testimony was admissible for the purpose of identifying him, and as a circumstance tending to prove his intent with respect to the alleged forged instrument. It is not necessary that we should determine the question presented with regard to the formation of the jury which tried this case, as that question will not arise on another trial. Because of the errors we have mentioned the judgment is reversed and the cause is remanded. Reversed and remanded.