This Case comes before us on motion for rehearing on the part of the appellant, the case having been affirmed at the Dallas term. Appellant insists that this case should be reconsidered, and a rehearing granted, because this court was in error in not holding that it was fundamental error because the court failed to instruct the jury as to the purpose for which they should consider the testimony introduced before them in regard to the passing by appellant of another forged instrument, and in this connection cites us to a number of authorities bearing upon this point. The other alleged forged instrument, which was introduced in evidence, was similar in form, and for the same amount, and the evidence tended to show was forged by appellant. We have examined the authorities referred to, and they indicate, with but few exceptions, an unbroken line of decisions to the effect that, when evidence is adduced, on the trial of a case against a defendant, tending to show the commission of another crime by him, it is the duty of the court, whether asked or not, to properly instruct the jury with reference to the purposes and object of such testimony. The exceptions to this rule, when examined, will be found to recognize the general rule, and to be predicated upon some peculiarity in the particular case. See, Reno v. State, 25 Tex.Crim. App., 110; Barnes v. State, 28 Tex.Crim. App., 30; Carter v. State, 23 Tex.Crim. App., 508; Mayfield v. State, 23 Tex.Crim. App., 645; Alexander v. State, 21 Tex.Crim. App., 407; Holmes v. State, 20 Tex.Crim. App., 509; Kelley v. State, 18 Tex.Crim. App., 262; House v. State, 16 Tex.Crim. App., 32; Barton v. State, 28 Tex.Crim. App., 484; Washington v. State, 23 Tex.Crim. App., 338; Maines v. state, 23 Tex.Crim. App., 576; Davidson v. State, 22 Tex.Crim. App., 382; Higgenbotham v. State, 24 Tex.Crim. App., 505. This very question came before this court in Burks v. State, 24 Tex.Crim. App., 326; and in that case the court used the following language: "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 the said instrument on the *Page 125 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." And, also see, Hennessy v. State, 23 Tex.Crim. App., 340. Upon the former hearing of this case we were of the opinion that it came within the line of decisions which hold it unnecessary to charge upon and limit the effect of extraneous crimes when admitted as testimony; and, not coming within that category, and being of a criminative nature, the court should not have charged with reference to the matter, as it would have had a tendency to call the attention of the jury to this circumstance, so as to affect the appellant adversely. Upon a closer examination of the record and the authorities, we believe that we were wrong, and that the case comes strictly under the authority of the Hennessy and Burks cases, supra, and that line of authorities. As we understand the law with reference to the admission of extraneous crimes, whenever they are admitted in evidence, and the effect has a tendency or might bring about a conviction for the extraneous crime, the court must limit the effect of the testimony in his charge to the jury. And this is the case, also, where the testimony, being admitted, has a tendency to injure the rights of the appellant in any other direction. The testimony must be limited. But where the testimony is simply used to prove up the case as res gestæ, or to prove any other fact that forms a part and parcel of the case, so as to show the defendant's guilt, and there is no probability of the jury convicting for the offense not charged, it is not necessary to limit the effect of the testimony. In fact, it is only necessary for the court to charge upon and limit said testimony when there is danger of a conviction for the offense not charged, or of an unwarranted use of the testimony to the prejudice of the defendant in the case in which he is being tried. For the reasons stated, a rehearing is granted, the judgment is reversed, and the cause remanded.
Reversed and Remanded.