
    JOHNSON v. STATE.
    (No. 5848.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1920.
    Rehearing Denied Nov. 10, 1920.)
    1. Criminal law 1091 (4)— Bill complaining of exclusion of answer to question too indefinite for review.
    A bill of exceptions in a forgery case, complaining that court erred in sustaining an objection to a question as to whether a certain person was honest, held too indefinite for revision, not stating what the witness would have answered.
    On Motion for Rehearing.
    2. Criminal law <§=^1056(2) — Instructions, not excepted to, not reviewable except in case of fundamental error.
    Under Code Cr. Proc. 1911, art. 735, an error of the court in charging the jury, not excepted to, will not be considered, unless it is of a fundamental nature, and goes to the basis of the case adversely to what the law is or ought to be.
    3. Criminal law <®=^>37l(5) — Extraneous crimes competent to show intent.
    In a prosecution for unlawfully attempting to pass a forged instrument, it was competent for the state to prove that defendant attempted to pass a forged instrument on other persons, as tending to show the intent, where an innocent purpose was claimed, or there was doubt as to the innocence of the act about which the complaint is made.
    4. Criminal law ©=31(156(1) — Error in instruction not so fundamental as to require reversal, in absence of exception.
    In a prosecution for attempting to pass a forged instrument, any error of the court in charging the jury'that the testimony of a witness upon whom defendant also attempted to pass the forged instrument was admitted before them only for what they might consider it to be worth upon the issue of the fraudulent intent of defendant, if erroneous by reason of being upon the weight of the evidence, was not so fundamental as to require the court to reverse, in the absence of an exception.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    A. J. Johnson was convicted of unlawfully attempting to pass a forged instrument, and appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, and H. N. Nelson, of Carthage, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State. ,
    
   DAVIDSON, P. J.

Appellant was convicted under the second count of the indictment charging him with unlawfully attempting to pass a forged instrument.

It is unnecessary to make a statement of or discuss the evidence. The jury was warranted in finding the verdict.

There is but one hill of exceptions in the record. It recites that defendant on cross-examination of the witness Middle-brook asked the following question:

“Grider — do you know Grider; you say you know Grider? A. He picked cotton for me. Q. Do you consider him a straight, honest, upright fellow?
“The State: We object to that as irrelevant and immaterial.”

Appellant stated that he offered this evidence as tending to show Grider’s connection with the check, “that he was of that kind or character, and that Mr. Middlebrook knew his reputation, and I am just trying to prove his reputation as to being a law-abiding citizen, otherwise, for that purpose.” The court sustained the state’s objection, and appellant excepted. This is the bill. What Middlebrook would have answered, or what was expected in answer to the question, is not stated. Whether his answer would have been favorable or unfavorable is not shown. As the bill is presented, we are unable to say that there was error in the action of the court. The reply of the witness, had he been permitted to answer, should have been 1 stated, so that this court could ascertain whether it was relevant or not. The bill is too indefinite for revision.

The judgment is affirmed.

On Motion for Rehearing.

Appellant concedes in his motion for rehearing that the decision of the court as rendered was correct on the questions discussed, but his contention, however, now is that the court below committed fundamental error in charging the jury that the testimony of the witness Maxey was admitted before them only for what they might consider ii to be worth, if anything, upon the issue of the fraudulent intent of defendant, and they should not consider it for any other purpose. His contention is that this is a charge upon the weight of the testimony. The testimony of Maxey was legitimate upon the question of intent. It is unnecessary to'state the facts. If it be conceded that appellant is correct that this had a tendency to convey the idea of the court that the attempt of appellant to pass the alleged forged check upon Maxey was an indication of the court’s view of that testimony, then it may be stated that there was no objection to the court’s charge during the trial, either at the time it was delivered or even in the motion for a new trial, and is raised for the first time in this motion for rehearing. The statute (article 735, C. C. P.) requires that exceptions to the court’s charge must be taken before it is read to the jury and in writing, specifying the grounds of objection. This was not done. Under the decisions an error or supposed error of the court in charging the jury will not be considered unless it be of a fundamental nature and goes to the basis of the case adversely to what the law is or ought to be. We do not understand this charge to be of that nature, even if it be conceded that it was somewhat on the weight of the testimony. It may be seriously doubted, however, whether that proposition would be a sound one if exception had been properly taken. Extraneous crimes of this sort may be introduced to show the intent of the party where an innocent purpose is claimed, or there be doubt as to the innocence of the act about which the complaint is made. The testimony of Maxey was clearly introdueible as bearing upon intent of defendant' in attempting to pass the check. This attempt occurred the same evening, and a very short time before he undertook to pass it upon another party, and upon which this conviction was obtained. We, therefore, hold that this error, if error at all, is not of such a nature that it requires this court to reverse under the circumstances.

The motion for rehearing will therefore be overruled. 
      <S=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
     
      <S=oFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     