Appellant was charged by indictment with forgery and passing a forged instrument. The second count alone was submitted to the jury, and the conviction was on that count.
He testified in his own behalf that he bought the alleged forged instrument from Setero Deano, paying him one dollar in money for it. The instrument itself called for $2.50 worth of merchandise at the store of W.T. Roberts, and purported to have been executed by J.W. Campbell in defendant's favor. This was his defense, and all that is set up in the testimony. He also proved by himself and his father that he could not write "in any language," nor could he read. The court failed to submit this theory of the case in the charge given to the jury, and appellant wrote out a charge embodying this defense, and requested the court to give it. The court refused to do so, and defendant excepted.
Under repeated decisions of this court it has been held that, where an accused person sets up and offers proof of an affirmative defense to the charge against him, it is the duty of the court to instruct the jury upon this matter, whether asked or not. See White v. State, 18 Texas Crim. App., 57; Irvine v. State, 20 Texas Crim. App., 12; Bond v. State, 23 Texas Crim. App., 180; Clark v. State, 34 Tex. Crim. 120. However, under the late statute on the subject, appellant brought himself within the rule therein laid down by asking a charge on the subject, and reserving his exception to the refusal of the court to give it. Under this latter act this court is prohibited from reversing judgments on errors in connection with the charge, unless they are material, and excepted to at the time of the trial, or on motion for new trial. Exception was *Page 318 properly reserved in this instance, and the error is material. If the defendant's testimony be true, the jury may have arrived at the conclusion that he purchased the instrument, and at the time of passing it was ignorant of the fact that it was forged. At least the court was not authorized to decide the credibility of this testimony, and withhold it from the jury, when the instruction was requested.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, absent.