I could not agree to the original opinion herein, but concur in the reversal on rehearing. Some of the latter opinion, however, I think is not correct. I do not purpose to write at any length.
1. I agree to the reversal on the ground stated, as to the error of the court in the charge submitting the punishment to the jury.
2. I can not agree with the conclusion that the alleged forged false affidavit is the subject of forgery. It is, in my judgment, without legal efficacy. It could not affect the title to the land mentioned, nor could it tend to make the forged quit claim deed a genuine document, nor could the affidavit, as I understand the law, be used for any legal purpose.
3. The alleged false affidavit could not be passed on DeLay so as to deceive or defraud. The facts bearing on this phase of the case are sufficiently stated in the original opinion by Judge Harper without repetition on my part.
4. I express no opinion as to whether the suggested new indictment, if one should be found, should allege the passing of the affidavit on Mathis. Mathis was the attorney who investigated the title for Baker, to whom it was sought to sell the land. It seems that the only connection that Mathis had with the transaction was to investigate the title as attorney for Baker. What his conclusion was on that matter is not made known, nor is it shown that the documents were ever passed from Mathis to Baker. They may have been given to DeLay. If the document was such a one as formed the predicate for forgery, as held by my brethren, then it must be passed for the purpose of deceiving or defrauding someone. I express no opinion as to that matter now, because the facts are too indefinite and meager to form the basis of any definite conclusion on that question.