
    WOODARD v. STATE.
    (No. 3282.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 1144*) — Appeal — Presumptions.
    Where the evidence is not in the record, it must be presumed that evidence in support of a motion to strike out accused’s plea of former jeopardy supported the action of the court in striking such plea.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771,2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]
    2. Criminal Law (§ 202*) — Former Jeopardy.
    The offense of attempting to pass an instrument knowing it to be forged is different from the offense of having possession of an instrument knowing it to be forged with intent to use and pass it as true; hence an acquittal of the first offense does not bar a prosecution for the second.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. § 202.*]
    3. Criminal Law (§ 1056*). — Appeai>-Pees-ENTATION OP GROUNDS OP REVIEW IN COURT Below.
    The refusal of special requested charges cannot be taken advantage of on appeal, where exceptions to the refusal were not reserved by bills of exceptions, and the record did not show when the charges were presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.*]
    4. Forgery (§ 48*) — Prosecution—Instructions.
    In a prosecution for having possession of a known forged instrument with intent to pass it, a requested charge that, if the name signed to the instrument purported to be the act of Fred Williamson and the jury found the name to it to be Freed William, they should acquit, is properly refused where the name actually signed to the instrument, as shown by the copy in the indictment and the instrument itself in evidence, was Freed Wiliam.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 124-128; Dec. Dig. § 48.*]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Sherman Woodard, alias Willie Johnson, was convicted of knowingly having in his possession a forged instrument with the intent of passing it, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for knowingly, etc., having in his possession a false and forged instrument in writing with intent to use and pass the same, and his punishment assessed at the lowest prescribed by law.

The indictment is in two separate and distinct counts. The first avers, with the other necessary elements, that he attempted to pass as true to one J. T. Conway said false and forged instrument in writing, a check copied in the indictment. The second avers, with the other necessary elements, that he had in his possession said check,. which was a false and forged instrument in writing, and, knowing that it was false and forged, he had it in his possession with intent to use and pass it as true. The first count was not submitted to the jury; the second was, and he was convicted on that as found expressly by the verdict.

He pleaded in writing former acquittal, claiming that it was the same offense with which he was charged and tried this time. His plea alleges that on the former prosecution and trial he was charged in the first count thereof with forging the same instrument ; that on the former trial the first count was not submitted, but ■ the second count only was. The second count in that indictment averred that he, well knowing said check to be false and forged, with intent to injure and defraud, attempted to pass it as true to one W. P. Duncan. The state, by the district attorney, moved to strike out said plea of jeopardy, because in this case he is charged with having said forged instrument in his possession, knowing it to be forged, with intent to use and pass it as true, and that the fact that he has heretofore been acquitted of having forged the same check would be no bar to this prosecution, and also the fact that he had been acquitted for having passed said forged check upon W. P. Duncan would be no bar to the prosecution in this case for having passed the same check upon J. T. Conway, and, further, that the defendant, upon former trial of the case, in which he was acquitted of having passed the forged check upon W. P. Duncan, claimed and filed a plea on account of the fact that there was a variance between the indictment and the proof, as the records of that case will show.

The judgment of the court, in passing upon this question, shows that he heard evidence and argument, and sustained the state’s motion to strike out appellant’s said plea, to which he excepted. The record in no way discloses what the evidence introduced before the court was. We must assume that the evidence supported the action of the court and that the action of the court is correct. But in any event the offenses alleged in the two indictments, although about the same check, are separate and distinct offenses, as clearly shown by the indictment in this case and appellant’s plea of jeopardy and the indictment attached as a part thereof. As shown above, the indictment in the former case, in the first count, charged appellant with forging the instrument; in the second count, with attempting to pass it upon Duncan. In this case the first count, which was not submitted, and appellant was not tried on it, charged that he attempted to pass it on Conway, and the second, that he had it in his possession, knowing it to be false, with intent to use and pass it as true, and are entirely separate and distinct offenses, and the court committed no error in striking out his plea. Branch’s Crim. Law, § 39S, p. 240, and cases there collated.

The record shows no objection to the court’s charge before it was read to the jury. There appear in the record three special charges requested by appellant. One of them was given; the other two refused. When they were presented to the court in no way is made to appear, nor does appellant except to the refusal of the court by any bill of exceptions whatever to give these two refused special charges. The matter, therefore, is not raised in such way that we can properly consider the refusal to give his two charges; but, even if we could consider the question, neither of them should have been given. One is to require the jury peremptorily to acquit appellant; the other is-to acquit him if they believe the name signed to the alleged forged instrument purports to be the act of Fred Williamson, and they find the name to it to be Freed William. The name actually signed to the instrument, as shown by copy of it in the indictment and the instrument itself introduced in evidence, was Freed Wiliam.

The only other question is: Appellant claims that the evidence is insufficient to support the verdict. We have carefully read and studied the statement of facts, and in our opinion the evidence is amply sufficient to sustain the verdict. We see no necessity or propriety in stating the evidence in this opinion.

The judgment is affirmed.  