The indictment in the first count charged forgery, and in the second passing a forged instrument. The count charging the passing was alone submitted to the jury. So the forgery count passed out, and upon which in future trials he will stand acquitted.
There are a great many bills of exception reserved to the introduction of testimony, and several exceptions properly pointed out errors in the court's charge. The State seems to rely upon the case of Fry v. State, 78 Tex.Crim. Rep.. There is a marked distinction between that and the present case. That opinion recites in quotation an agreement as follows: "It is agreed by counsel and it is admitted by the defendant that the entire bunch of warrants purporting to be issued by the county *Page 502 clerk of Young County and his deputies and the entire bunch of checks purporting to be issued by I.B. Padgett, county treasurer of Young County, and drawn on the Graham National Bank, are each and all the genuine warrants, so issued by the clerk, and that the checks are the genuine checks of I.B. Padgett, drawn by him or by his authority, and that the endorsements appearing on the back of said checks, as E.W. Fry, are the genuine endorsements and signatures of the defendant, E.W. Fry." This record does not contain such admission, and the issue of the genuineness of the endorsement of the checks is one of the most serious questions arising on this record. The checks admitted were considerably over one hundred in number. A serious question arising was that appellant did not sign his name or that of the payee upon the back of the checks. These issues were sharply contested. The State contended that the signature of appellant was genuine, and that the payee's name was forged. These questions were to be solved largely, if not exclusively, by the knowledge of the witnesses as to the handwriting of appellant. These transactions cover two or three years of time. The checks were introduced by the State upon the theory that it was necessary to prove intent of the appellant by means of systematically passing forged instruments. System is only used where it connects with the main fact, and this to show intent or knowledge or identity. Independent of these system is not admissible as we understand the law. It is not permissible to prove independent transactions unless by doing so they show the intent of the accused, or connect him with the main fact, that is, the case on trial. The mere fact that system was pursued is not admissible independent of the other matters. The writer has not believed, nor does he yet believe, that these checks were admissible from any viewpoint of this record, or of the record in the case of Fry v. State,78 Tex. Crim. 435. He took occasion in that case to note the fact that he did not believe the extraneous offenses, or the details thereof, should have been admitted, but the majority of the court did not take that view of the case or the law. But here we have an entirely different case from the former one, and in all of the cases there was an issue sharply drawn and hotly contested that appellant's name was not genuine; that his name as written on these checks was not in his handwriting. The case is one of purely circumstantial evidence, and the court so charged the jury. In this case we are of opinion these checks should not have been admitted under the circumstances stated. In all of the checks, amounting to a great number, the issue was fought with reference to each check introduced as to the genuinenesss of appellant's name. From the fact that his name was on these instruments, the deduction was supposed to be drawn that if he signed his name upon these checks that he forged the name of the payee in the checks or knew if he did not sign the name that the endorsed name was a forgery. This necessarily involves evidence as to the genuineness vel non of appellant's name and of these various checks. So it will be seen from this statement that each check involved a separate trial as to that particular transaction, and we have *Page 503 the main trial turned aside from passing the instrument made payable to and endorsed by Lowe, which was the check upon which the indictment was based to all the other checks introduced. There is no question, it seems, of the fact that the check was genuine as drawn by Padgett, the alleged county treasurer. The fraud consisted in the endorsement of Lowe's name upon the back of it, and passing the checks in that condition. Lowe testified that he did not sign his name, and that the county did not owe him the amount for which the check was drawn. The same may be said of the other checks, practically all of them. It is a rule that only the case upon which the indictment declares a violation is to be tried. Extraneous or collateral offenses may be admissible to show intent, knowledge or identity, and sometimes this may be inferred from system. But wherever the State turns aside and introduces collateral offenses and it becomes necessary to prove the case they are admitted with a view of ascertaining whether they are genuine. If not they should not be introduced. This constitutes as many trials on the independent offenses as there are number of alleged independent offenses or collateral crimes. This diverts the minds of the jury and of the court from the case on trial. It involves trials separately upon each collateral offense to ascertain whether or not he is connected with that offense criminally. This was recognized by the court, and the jury instructed with reference to it. The court's charge in this connection is as follows:
"The State has introduced in evidence a number of checks with their endorsements, other than the check mentioned in the indictment, and upon which the defendant is being tried in this case, and with reference to these checks you are instructed: (1) That the said checks were only admitted in evidence for the purpose of showing the intent of the defendant and his system of conduct with reference to such checks (if in fact they show such intent and system of conduct) and they can not be considered by you for any other purpose. (2) You are further instructed that you can not consider for any purpose any such checks other than the J.T. Lowe check, except such (if any) as you may find and believe from the evidence beyond a reasonable doubt, were altered or knowingly passed as true by the defendant without lawful authority and with intent to injure and defraud."
So it will be seen from the court's charge as well as from what has been said with reference to the fact, that appellant was tried upon each collateral offense and the jury was so informed, and that they must find from the evidence beyond a reasonable doubt that these checks were altered or knowingly passed as true by defendant without lawful authority. Then in order to arrive at a conclusion on the part of the jury as a predicate for the consideration of the illegality of these checks, they must first determine that they were fraudulent or altered. So it will be seen before the jury could consider these collateral offenses as evidence they must first determine, after hearing all the facts, pro and con, that they were illegal and fraudulent before passing upon the intent of *Page 504 the appellant. If there were one hundred and fifty to two hundred of these checks introduced, the jury would necessarily, under the facts, under the issues and under the charge of the court, have to determine first whether these checks were fraudulent, and if so, then they might consider them with reference to the main case, but unless they did so determine they could not be so considered. That is the effect of the charge of the court. There is no question that appellant was tried on many of them on their merits prerequisite to their consideration as evidence. Under such circumstances these checks were not admissible. The charge above quoted as well as the fifth subdivision of the charge seems to be erroneous. Exception was reserved to the fifth subdivision because it was illegal in various ways, and especially that the jury must determine whether or not defendant believed these checks were genuine or false, and if they should believe that the endorsements were made without legal authority and with intent to defraud, then they should consider them, otherwise they should not. The theory of the defendant was that as the State was relying upon the fact that he passed the instrument, it being a case of circumstantial evidence, that the jury must find that he and not the jury believed the check was not genuine. If he believed the check was genuine he was entitled to an acquittal, because there would be no fraudulent intent. The jury must look at this case as all the other cases from the viewpoint of defendant and not from their viewpoint. If defendant believed the check was not fraudulent, or that the endorsement was made with lawful authority, then he would not be guilty, although he may have passed it. But the court instructed the jury that it was their province to believe the endorsement was made without lawful authority and with intent to defraud. Of course they must so believe, but as prerequisite in a case of this sort they must also ascertain the fact that defendant so believed. This matter was a part of the case and the jury should have been instructed to look at it from defendant's standpoint as to whether he believed the endorsement was illegal. The exception to this charge is as follows: "Because the same instructs the jury that if the name J.T. Lowe was written on the back of the instrument set out in the second count of the indictment by defendant Fry, or any other person, that the same would be forgery, and said paragraph assumes that the defendant knew that said endorsement to be a forgery." The belief of the defendant was a matter for the jury to determine and not the court. We are of opinion this exception was well taken.
There is a bill of exceptions reserved to the action of the court permitting the State to go into the homicide transaction involving the difficulty and all of its details as well as the preparation for the entering of the courthouse at night and taking checks from the vault, which finally resulted in the homicide. This matter was gone into in detail in many ways which we deem unnecessary to detail. The majority is of opinion this testimony was admissible. The writer is of opinion that *Page 505 if this attack was made upon the officer at the courthouse with a view of securing this and other illegal checks as a means of destroying testimony, then it was admissible, but is of the opinion that the details of the whole trouble are not admissible. It was not necessary to go into all details of the shooting affair, but if wrong about that, then there is another question, that is, as far as the State did go into these matters as criminating evidence, the defendant had the right to have witnesses present to meet and to introduce all defensive evidence to meet the State's evidence. The opposing side always has a right to explain any matter introduced by the other side which tends to incriminate or to be used adversely to him. This has been the subject of so many decisions and not only so but by express enactment of the Legislature we deem it unnecessary to discuss that matter. It seems from the bill of exceptions that there had been a trial of the homicide case against appellant and he had been acquitted. If the State upon another trial should introduce the trouble occurring at the courthouse which resulted in the homicide, then as far as the State goes in introducing incriminating circumstances and facts against him defendant would have the right to rebut this by any testimony legitimately meeting and contesting such criminating facts. This case, it occurs to the writer, is an exemplification of the rule that extraneous matters should be gone into cautiously. This record seems to make it certain that a great number of extraneous matters were placed before the jury, the number of which the writer has not taken trouble to enumerate, and all the facts and circumstances connected with each one of those collateral offenses introduced. These extraneous matters were proved before the jury by the State, and denied by appellant. So we have the jury trying as many different offenses in this case as there were collateral offenses introduced. Before the State could use these matters against the accused upon his trial, it was necessary for the jury to determine the guilt of the defendant or apparent guilt in each collateral offense. If there were one hundred and fifty to two hundred of those extraneous crimes, then the jury had to determine in each that appellant was criminally connected with it to authorize its consideration under the theory of system to show his intent or knowledge. In the case of Fry v. State,78 Tex. Crim. 435, it is recited there were five or six hundred of these extraneous crimes or offenses introduced. The statement of this matter ought to show the error in the use of such testimony.
For the reasons indicated the judgment is reversed and the cause remanded.
Reversed and remanded.