Burks v. State

• Decision Date: 23 November 1887
• Citation: 6 S.W. 300
• Parties: BURKS v. STATE.
• Court: Texas Court of Appeals

6 S.W. 300

BURKS v. STATE.

Court of Appeals of Texas.

November 23, 1887.

Appeal from district court, Taylor county; T. H. CONNER, Judge.

Indictment against John Burks for attempting to pass a forged instrument upon one M. A. Hart, knowing the same to be forged. The instrument reads as follows:

                  "No. 5.                           BALLINGER, TEX., July 15, 1887
                

"First National Bank of Ballinger: Pay to John Burks or bearer the sum of forty-three (43) dollars.

                "s $43.00.                                   D. E. SIMS."
                

The defendant was convicted, and sentenced to three years' imprisonment. Defendant appealed.

Asst. Atty. Gen. Davidson, for the State. No appearance for defendant.

WILLSON, J.

1. Defendant's special plea of former conviction is in due form, and upon its face presents a valid bar to the prosecution in this case. The trial judge properly, and under appropriate instructions, submitted the issue raised by said plea, and the evidence adduced in support thereof, to the jury, except that the jury were not instructed, as they should have been, that they must say in their verdict that the matters alleged in said plea were true or untrue. Code Crim. Proc. art. 712. It has been repeatedly held that when a special plea is submitted to the jury, the verdict must expressly determine whether the plea is true or untrue, and that an omission to so find is error, for which the conviction must be set aside. Smith v. State, 18 Tex. App. 329, and cases cited. It may be contended, however, that such omission is harmless, and not reversible, error, when the evidence shows that the conviction pleaded was not for the same offense, but for an entirely different offense than the one for which the defendant was on trial. Were it not for the mandatory terms of the statute, requiring the jury directly and expressly to state in their verdict their finding upon the plea, we would be inclined to so hold; but we think it best to adhere to the plain words of the statute, and the decisions heretofore made construing it. In view of another trial in the case, we will say that in our opinion the special plea of former conviction was not sustained by the evidence. Said former conviction was for attempting to pass a forged instrument in writing to a different person than the person named in this indictment, and, as the evidence proves, at a different time and place. The transactions were apparent, and constituted different offenses, although the forged instrument attempted to be passed was the same. The two attempts are as distinct and separate as would be two assaults committed upon different persons, at different times and places, but with the same weapon.

2. Upon the trial, the state proved, not only the attempt to pass the forged instrument to the party alleged in the indictment, but also that the defendant attempted to pass said instrument on the...