In the trial court the defendant pleaded in due form a former conviction for the same offense. Evidence was adduced by him in support of said plea, and the court submitted the issue made by said plea and evidence to the jury. The verdict of the jury does not find whether said plea is true or untrue, but merely finds the defendant guilty as charged, and assesses the punishment.
Where a special plea is submitted to the jury, the verdict must expressly state whether said plea is true or untrue, and an omission to so state is error for which the verdict must be set aside. (Burks v. The State, 24 Texas Ct. App., 326; Smith v. The State, 18 Texas Ct. App., 329.) The court in its charge should have instructed the jury explicitly that they must find and state in their verdict whether said plea was true or untrue. Such instruction the court failed to give.
The judgment is reversed and the cause is remanded.
Reversed and remanded.