6 S.W. 531


WILLIAMS
v.
STATE.


Court of Appeals of Texas.


November 23, 1887.

        Appeal from district court, Freestone county; S. R. FROST, Judge.

        The defendant, Aaron Williams, was convicted of forgery. The penalty assessed was 
a term of two years in the penitentiary; whereupon defendant brought this appeal.

        Bell & Steele, for appellant. Asst. Atty. Gen. Davidson, for the State.

Page 532

        HURT, J.

  This is a conviction for forgery, predicated upon making, without
authority, with intent to defraud, etc., the following instrument:

                                        "Watham, frestan Co texas.

  "Mr allen bounds please let Aran Williams 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 cannot be made the 
subject of forgery by proper averments in the indictment. We think differently. See this 
subject discussed in Rollins v. State, 22 Tex. App. 548, 3 S. W. Rep. 759.

        There being two counts, — one for forgery, and one for uttering a forged instrument, 
— it is here insisted that the state should have been forced to elect upon which count it 
would prosecute. Not so in such a case as this.

        The testimony of Phil Leach, Alex. Leach, and Nelson Williams, if true, clearly 
shows that Stubbs authorized defendant to write the order, and the defense relied upon 
this authority and William Stubbs. 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, or 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 authority to defendant to write and sign the 
instrument, 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 exception to this 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.