USHER v. THE STATE

1. — Charge of the Court — Harmless Error.

Where under an indictment with two counts, one for forgery and the other for passing a forged instrument, there is evidence to support either count, there was no error in improperly charging the jury in effect to consider first whether appellant was guilty of forgery, and if they acquitted him of this offense, they might then consider whether he was guilty of passing as true a forged instrument.

Where the point was not reserved by bill of exceptions, to the effect that the court charged on the weight of the evidence, it will not be considered.

Where the court instructed on circumstantial evidence on the first count in the indictment for forgery, but failed to do so on the second count for passing a forged instrument as true, there was no error, in the absence of that issue; the evidence being direct.

Where there is no bill of exception, the question of the introduction of secondary evidence will not be considered.

The question as to defendant's right to be heard by counsel will not be considered in the absence of a bill of exception.

BROOKS, JUDGE.

The indictment contains two counts: the first for forgery, and the second passing as true a forged instrument. The court submitted both counts to the jury and the conviction was under the second count, the penalty assessed being four years' confinement in the penitentiary.

Appellant insists that the court erred in submitting to the jury the second count in the indictment because there was no evidence authorizing the submission of this count; and for the further reason that the acquittal of this count was proof that there was no evidence authorizing the submission of the second count. The record shows that the court instructed the jury, in effect, to consider first whether appellant was guilty of forgery, and if they acquitted him of this offense, they might then consider whether he was guilty of passing as true a forged instrument. This was not the proper way in which to submit these counts, but it is not a matter of which appellant can complain. The evidence is amply sufficient to support either count.

Appellant complains of the following portion of the court's charge: "If evidence has been introduced which tends to show forgery or passing as true any forged instrument other than the instrument set out in the indictment," etc. Appellant insists that this charge is upon the weight of the evidence. However, this exception is not reserved either by bill of exceptions or in motion for new trial; and therefore can not be reviwed by this court. See art. 723, Code Crim. Proc.

The court instructed the jury that the State relied for a conviction upon circumstantial evidence as the first count, but did not charge the law of circumstantial evidence as to the second count. This is not a case of circumstantial evidence, and the court was not authorized to so charge, inasmuch as the evidence was positive as to the passing of the instrument.

Appellant further insists that the best evidence of which the case was susceptible was not introduced. This may be true, but he has no bill of exceptions to the introduction of secondary evidence, and for that reason it can not be reviewed.

He also complains of the failure of the court to continue the case on account of the absence of counsel. There is no bill of exceptions reserved verifying this matter, and hence it can not be reviewed.

No error appearing in the record, the judgment is affirmed.

Affirmed.

[Motion for rehearing overruled without written opinion. — Reporter.]