delivered the opinion of the court.
This is a joint indictment against B. S. Hansel and S. H. Bobinett containing two counts. The first count charges Hansel with forging an option contract for the sale of certain coal land lying in the counties of Bussell and Buchanan, and Bobinett with counselling, hiring, procuring and aiding and abetting him in the.commission of the forgery; and the second count charges .Hansel with uttering and attempting to employ as true the forged instrument, with intent to defraud, etc.
The jury found the accused, Hansel, guilty as charged in the indictment, and fixed his punishment at three years’ confinement in the penitentiary; and upon that verdict the judgment under review was rendered.
1. The first assignment of error is to the admission in evidence of the contract of February 9, 1914, between Bobinett of the one part and Hansel and Griffith of the other part, whereby the former assigned to the two latter two-thirds of the amount claimed to be due to Bobinett from the Smith heirs as commissions for procuring a purchaser for land under the option contract. The grounds of objection to the admission of the paper were (1) that it was not sufficiently identified; and (2) that it was immaterial.
The execution of the paper was proved by the testimony of *808Griffith, one of the parties, and also the lawyer who prepared it, and, when offered in evidence, its identity was established by that witness. The materiality of the paper is shown by the circumstances that Hansel, who was introduced as a witness for Eobinett in the suit for commissions, was entitled to one-third of the recovery; and, moreover, the execution of the contract of assignment, the institution of the suit by Griffith to recover commissions, and Hansel’s testifying at the trial as plaintiff’s witness were relevant occurrences tending to sustain the charge against him of uttering the forged instrument.
2. The ground of exception here relied on is not made an assignment of error in the petition; it is discussed for the first time in the reply brief. Waiving, however, that irregularity of procedure, the objection pressed upon us is to the admission by the trial court of the stenographic report of Hansel’s testimony in the suit for commissions. It is said (1) that the stenographic report of the evidence, which the court allowed one of the prosecutors to read to the jury, was not properly authenticated.
The fact is that, in the absence of the jury, the admissibility of this evidence was fully discussed, and the court observed: “The court permits the evidence of the defendant (Hansel) given in the civil case, which is admitted to be correct, or about which there is no controversy, to be read in evidence upon the theory that everything said or done by the accused in a transaction of an attempt to utter a paper with knowledge of its forgery is admissible, which knowledge must be proven, and which is admissible under the rule laid down in Sands’ Case, 20 Gratt. (61 Va.) 800 and Chahoon’s Case, 20 Gratt. (61 Va.) 733, and the West Virginia ease of State v. Henderson, 29 W. Va. 147 (1 S. E. 225).
If it had been the purpose of the defense to challenge the authenticity of the report of the evidence, the statement of the court that its genuineness was admitted ought then to have been denied.
*809Again it was insisted (2) that the admission of this evidence was contrary to section 3901 of the Code, which is as follows: '“In a criminal prosecution, other than for perjury, or in any action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon •a legal examination unless such statement was made when ■examined as a witness in his own behalf.”
With respect to this objection, it is sufficient to say that though Hansel was called as a witness for the plaintiff, Bobinett, they had a joint interest in the recovery. So that in point of fact he was “examined as a witness in his own behalf.”
3. The third assignment of error (and the only other assignment that demands our notice) involves the refusal of the court to grant instruction Ho. 4, as prayed by the accused, and giving it in its modified form.
The instruction, as offered, reads: “The court instructs the jury that before they can convict the defendant of uttering or attempting to employ as true the writing in controversy before them in this case, they must believe beyond all reasonable ■doubt, first, that said paper is a forgery; and, second, that the defendant, B. S. Hansel, knew that fact at the time of the ■trial of the civil action of S. H. Bobinett against the Smith heirs referred to in the evidence; and third, that the paper introduced in evidence and purporting to be a contract between 8. II. Bobinett, A. T. Griffith and B. 8. Hansel is a genuine contract between the. said parties duly executed and delivered, •and that said contract was in effect between said parties at the time of the trial of the said civil action referred to
The instruction given omits the italicised language above. In other words, the modified instruction, in substance, told the jury that they should convict the accused if they believed from the evidence that the paper was a forgery, and that that fact was known to Hansel at the time of the trial of the civil .action.
*810It is obvious that these circumstances, standing alone, were insufficient to warrant a conviction. In themselves, they do not show that the accused either uttered or assisted in uttering the supposed forged instrument. For that error the judgment must be reversed, the verdict of the jury set aside, and the case remanded for a new trial.
'4. In this view of the case, it is not necessary, nor would it be proper, to consider the last assignment, namely, the refusal of the court to set aside the verdict on the ground that it was contrary to the evidence and without evidence to support it.
Reversed.