
    B. A. (Dick) Helsley v. The State.
    No. 17232.
    Delivered March 20, 1935.
    The opinion states the case.
    
      W. W. Ballard, of Wichita Falls, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

Attempting to pass a forged instrument is the offense; penalty assessed at confinement in the penitentiary for life.

The offense charged in the indictment is that B. A. (Dick)> Helsley, on or about the 23rd day of December, 1933, made an attempt to pass as true to one, Jack Brumley, a forged instrument in writing of the tenor following.

“THE FIRST NATIONAL BANK OF BURNETT
“88-778
“This bank is under U. S. Government supervision.
“Pay to — H. G. Potts — or order $7.50 Seven and 50/100 dollars
“For' Trailer.
“R. L. Burton.”.

The indictment also contains the following averment: “And the Grand Jurors do further present that prior to the commission of the aforesaid offense by the said B. A. (Dick) Helsley, to-wit: 3rd day of May, 1926, in the District Court of Collin County, Texas, the said B. A. (Dick) Helsley was duly and legally convicted in said named Court of a felony upon an indictment then legally pending in said last named Court against him and of which the said court had jurisdiction and which conviction became and was a final conviction.”

• It is averred in the indictment that on the 26th day of September, 1922, in the District Court of Tarrant County, Texas, the appellant was convicted of a felony.

The fourth subdivision makes a similar charge, namely, that on the 5th day of May, 1930, in the District Court of Hunt County, appellant was convicted of a felony upon an indictment legally pénding. No further description is given.

The fifth subdivision is that on' the 5th day of May, 1930, in the District Court of Hunt County, Texas, appellant was convicted of ¡ a’ felony.

The sixth subdivision refers to a conviction of a felony in the District Court of Potter County on the 14th day of September, 1931.

Governing the' prosecution of habitual criminals is Article ‘63, P. C., 1925, which reads as follows: “Whoever shall have ¡been three times convicted of a felony less than capital shall on such third conviction be imprisoned for "life in .the penitentiary.”

The indictment is defective in failing to allege that the previous convictions were for felonies less than capital. Moreover, .-the nature and character of the offense should have been :so alleged as that it would appear from the averment of the former charge that this appellant was therein charged with an offense less than, capital. The evidence touching the previous Convictions was not admissible against appellant for the reason, thaf the .indictment contains an averment that the indictments in the prior cases were against B. A. (Dick) Helsley, when as a matter of fact, the proof showed that the offender named in the said previous indictments was not Helsley. In one of them, the party charged is A. M. Shaw, alias Walter Walker Warren, alias W. W. Beck, alias Luther Ramsey, alias Walter Scott, alias L. C. Howard. In another indictment the offender is A. Vymola.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed and remanded.  