
    The State v. Turner, Appellant.
    Division Two,
    February 21, 1899.
    Forgery: instructions: verdict of jury. The second count in an indictment charged defendant with selling a forged check, and the third with having in his possession such a cheek with intent to pass it. The court instructed that, if the jury found that defendant had in his possession a forged cheek with intent to pass it, they would find him guilty under the second count. The verdict was guilty as charged in the second count. Meld, that giving the instruction was reversible error.
    
      Appeal from Jackson Criminal Court. — Hon. D. W. Shaoexeeord,. Special Judge
    EeVERSED AND REMANDED.
    Edward 0. Crow, Attorney-General, for tbe State.
   SHEEWOOD, J.

Tbe defendant who, it seems, is a lawyer, was indicted under tbe provisions of section 3638, Eevised Statutes 1889, for forging a check. Tbis was tbe first count in tbe indictment. Tbe second count was under tbe provisions of section 3634, lb., for selling to Harry S, Tuttle a forged cbeck.

Tbe third count was framed upon section 3635, lb., and was for having in bis possession a forged cbeck with intent to pass, etc. Defendant excepted to all tbe instructions given. Tbe chief instruction given on tbe part of tbe State was in relation to defendant having in bis possession a forged cbeck, etc., with intent to pass, etc., and tbe jury were instructed that if, etc., they would find defendant guilty of forgery in tbe second degree “under tbe second count in tbe indictment,” etc.

The jury returned into court tbis verdict: “We the jury find the defendant guilty as charged in the second count in the indictment and assess his punishment at 5 years in the State penitentiary.”

Now, the second count of. the indictment as already seen was for selling a forged check, while the instruction of the court was for having a forged check in his possession with intent, etc. So that the instruction given was based upon a count and an issue on which defendant was not being tried, and was therefore erroneous.

This error must result in the reversal of the judgment and the remanding of the cause, and it is so ordered.

All concur.  