Appellant was convicted of knowingly passing as true a forged instrument. The order read as follows.
"July 13, 1892.
"Mr. Lane:
"Please let the bearer have $2.50 worth of goods, and charge the same to me.
[Signed] "J.H. COLE."
Counsel for appellant moved to quash the indictment, because the instrument was not valid upon its face, and such as would sustain a civil action without recurring to extrinsic evidence. This objection is not, well taken. Hendricks v. The State, 26 Texas Ct. App. 176[26 Tex. Crim. 176].
This case was tried at the January Term, 1893, of the District Court of Hunt County. Prior to this conviction, appellant had been tried and acquitted of forging the same instrument. The indictment upon which the acquittal was had contained but one count, and that was for the forgery. In bar to this prosecution appellant pleaded the former acquittal. Appellant can not plead former acquittal under the above facts. Appellant was not in jeopardy, because he could not have been convicted for passing a forged instrument under an indictment which charged the forgery only. A person may not be guilty of forging an instrument, but may be guilty of passing the same instrument. There is no error in the record as presented to us, and the judgment is affirmed.
Affirmed.
Simkins, J., absent. *Page 589