This is a conviction for forgery, predicated upon making without authority, with intent to defraud, etc., the following instrument:
Wortham freston Co Texas.
Mr alien bounds please let Aran Williams have 1 par shose 1 par pants and charge the same by this. Aug the 16 1884
p c Stubbs.
It appears that the instrument was introduced in evidence before it was shown that defendant wrote it, though this proof was afterwards made. This was irregular, but it was not reversible error.
Appellant contends that the instrument is of such deformity as can not be made the subject of forgery by proper averments in the indictment. We think differently. (See this subject discussed in Rollins v. The State, 22 Texas Ct. App., 548.)
There being two counts, one for forgery and the other for uttering the forged instrument, it is here insisted that the State *346should have been forced to elect upon which count it would prosecute. Not so in such a case as this.
Opinion delivered November 23, 1887.The testimony of Phil Leache, Alice Leache and Nelson Williams, if true, clearly shows that Stubbs authorized defendant to write the order, and the defendant relied upon the authority from Stubbs to write the same. Whether the facts sworn to by these witnesses were true or false, the duty devolving upon the court was just as imperative to give in charge the law applicable thereto. This duty is not performed by a negative charge, nor by affirmatively charging that, in order to convict, the jury must believe beyond a reasonable doubt that the instrument was made without lawful authority. The testimony of the three witnesses named demanded a charge, in substance, that if the jury believed from the evidence that Stubbs gave defendant authority to write and sign the instrument, then they should acquit. Or, if the evidence upon this point raised a reasonable doubt as to whether Stubbs authorized defendant to write and sign the order, they should acquit. Due exceptions to the omission was made.
This court, in quite a number of cases, has stated the rule upon this subject to be that, whether requested or not, in felony cases it is the duty of the court to charge clearly and affirmatively the law applicable to every phase of the case; and especially to every defense presented by the evidence.
The judgment is reversed and the cause remanded.
Reversed and remanded.