There were two counts in the indictment in this case—one for forgery, and one for uttering or passing a forged instrument knowing it to be forged. It was alleged that the instrument forged was an order drawn by one Buford on one Lipscomb for three dollars and ninety cents, the forgery consisting in the •'’act that said order had been altered by defendant, after delivery to him, so as to .make it call for thirteen dollars and ninety cents, instead of three dollars and ninety cents, and that defendant passed it to said Lipscomb and obtained thereon thirteen dollars and ninety cents.
The evidence shows that defendant knew he was only entitled to three dollars and ninety cents, and that he did receive the thirteen dollars and ninety cents of Lipscomb on the order. But we are of opinion that the evidence leaves it extremely doubtful whether the instrument was at all altered by defendant, and whether or not Buford himself did not make the mistake in the figures when he wrote the order and delivered it to defendant. If Buford made the mistake in writing the order, then it was not a forgery, nor would defendant, in passing it, be guilty of passing a forged instrument, even had he known of the mistake, however reprehensible his conduct in receiving ten dollars' more upon it than he was entitled to, without saying anything about it. If the order was not a forgery, whatever defendant’s crime may have been, he was'not guilty under either count in the indictment upon which he was being tried. This was the important question in the case—the point, in fact, upon which defendant’s guilt really hung—and the law with regard to it should have been clearly and pertinently presented to the jury. Without such necessary and appropriate instructions, they may have predicated their verdict solely upon the fact that he received thirteen dollars and ninety cents instead of the three dol*275lars and ninety cents which he was alone entitled to. It may bo that they would, and, in the state of the evidence we think it highly probable, have found defendant not guilty as charged, if the law as applicable to the facts' had been sufficiently expounded.
Opinion delivered May 2, 1886.Because the charge of the court did not sufficiently present the law applicable to the facts, the judgment is reversed and the cause remanded.
Reversed and remanded.