Waller v. State

delivered the opinion of the court.

Appellant was convicted upon an indictment embodying two counts, charging him with the forgery of a cer*638tain order with the intent to cheat and defraud one Charles A. Monsour, and with uttering and publishing as true said forged order with the intent to cheat and defraud said Charles A. Monsour. The trial court, at the instance of the state, instructed the jury as follows: “The court instructs the jury that, if they believe from the evidence beyond a reasonable doubt that the defendant, either himself or through another at his request, altered the cheek in the manner testified to by the witnesses for the state, with intent to defraud Ziller, it is their duty to find the defendant guilty as charged.”

It will be observed that the indictment charged the defendant with forging and uttering the alleged forged instrument of writing with the intent to cheat and defraud one person, whereas the jury were instructed to find him guilty if they believed from the evidence that he forged or uttered the instrument with intent to cheat and defraud an entirely different person. The pleader elected to set out in the indictment the name of a specific person whom the defendant was charged with having intended to cheat and defraud; and, this being true, it is manifest that the trial should have been confined to the charges preferred by the indictment. If the verdict of the jury had been an acquittal rather than a conviction, and the state had afterwards placed the defendant upon trial for forging and uttering the order with the intent to cheat and defraud the person named in the instruction, he would not be permitted to introduce and plead the former acquittal in bar of the second indictment.

Reversed and remanded.