Avas an indictment for an alleged forgery, of the folloAving instrument in writing, by the defendant:

“ For value received, on or before the first day of December next, Ave, or either of us, promise to pay Mr. Crattic, or order, the amount of fifteen bushels of corn. This June 23d, 1868.

“ Sureties. "D. B. IIorton,

“A. D. Bensiiaav.”

Upon the trial it Avas proved by the co-obligor, A. D. Benshaw, that he neither signed said instrument in Avriting, nor did he authorize any one to sign his name to it; that he had seen the note in the hands of the payee, Crattic, aa’Iio had de*82mancled payment of him; that he was familiar with the handwriting of D. L. Horton, and believed that the body of the note and the name of D. L. Horton was in the handwriting of the defendant; but that he could not and would not say that the name “A. D. Eenshaw,” thereto signed, was in the defendant’s handwriting; that it was not in the style of his handwriting; that the payee, Crattic, had died three weeks before the trial. The rest oí the proof introduced was to show that the defendant had gotten ten bushels of corn front Crattic, for which the defendant tras to pay him fifteen bushels. This is all the proof of the making of the false instrument in writing, by the defendant, without lawful authority.

The indictment charges that the defendant, on the day and date mentioned in the above writing, without laAvful authority, and with intent to defraud, made this false instrument in writing, purporting to be the act of another, and sets forth the instrument alleged to be false. If the facts alleged w'ere true, they embrace all the requisites of the crime of forgery, as defined by the statute. It sets forth an alleged “ false instrument in writing,” made “ without lawful authority,” “ purporting to be the act of” “ A. D. Eenshaw',” “ with intent to defraud containing every element in the definition of forgery by the Code. The construction of the false instrument charged, by the rules of law, is to determine, whether the false instrument, if true, would create,- increase, diminish, discharge or defeat any pecuniary obligation, or would transfer or affect any property whatever. It is needless to charge in the indictment, how these results w'ould be accomplished by the false instruments in writing. These are deductions of law, to be made in construing the false instrument, according to the principles of law'. The indictment is therefore sufficient to put the accused upon his defense; and if facts were introduced to sustain all the allegations in the indictment, they would fix the guilt upon the party, unless countervailed by exculpatory ■proof on the part of the defense. The objection to the indictment is not well taken:

*83It is assigned as error that the court, upon the trial, admitted the note charged to be forged to be submitted to the jury as evidence, when it had no internal revenue stamp upon it. By comparing the definition of forgery in the Code with the com. mon law definition, it will be found that those definitions are substantially the same, and the decisions upon the questions of unstamped paper, as instruments of evidence in common law courts, may elucidate the matter under consideration. It has been decided in England that forgery upon unstamped paper may be committed, non obstante the Stamp Acts of the 22 Geo. III. (See 2 Russell on Crimes, 346-7, margin.) In England there was no provision in the statutes for affixing the stamp to an unstamped paper by the holder. By the statutes of the United States there is such provision. If, without such provision, forgery can be committed upon unstamped paper there, in the judgment of enlightened jurists, a fortiori, with such a provision in the law, it may be done here—construing the penal statutes of the State of Texas, as the court is authorized to do, in the light of the common law. The “ making ” of a forged instrument, with the criminal intent, is complete, without the affixing of the proper stamp. (Statutes at Large, vol. 14, page 143, 2 and 3 provisos.) Heitlier is this objection well taken.

The final and substantive objection is, that the evidence adduced on the trial was not sufficient to establish the guilty “ making ” of the false instrument. In this the com't thinks the objection to the verdict and judgment is well taken. There are several reasons why the evidence upon the trial was insufficient to establish the guilt of the accused. There is no proof whence the false instrument offered in evidence was obtained. It is true the witness says it was once presented to him by the payee for payment. But the payee was dead at the time of the trial. There is no proof showing, beyond doubt, that the name of the witness, “A. B. Benshaw,” might not have been affixed to the instrument after its execution by the accused, and after it had passed from his hands ; or that it may not have *84been taken from the maker before he had consummated his purpose of procuring the signature of a co-obligor before delivery. The doubt in this regard is greatly augmented when taken in connection with the statement of the witness, that, although the 1¿>ocly of the instrument and the name of the defendant is in the handwriting of the defendant, yet he would not, and could not, say that the signature of his name to it was in the handwriting of the defendant. There is neither such positive proof, nor was there such circumstantial evidence, adduced upon the trial as would exclude another hypothesis perfectly consistent with the facts of the case, and with the innocence of the party charged with the forgery.

It is, therefore, considered by the court that the judgment be reversed and the cause remanded.

Reversed and remanded.