¶1An order for ten dollars upon one Dario Gonzalez is charged to have been forged by the defendant. This order, though identified by the witnesses, was not put in evidence. The record upon this subject recites as follows: P. S. Babcock being on the stand, stated: “ I know the defendant. I paid the defendant the order referred to. I would know it again if I saw it. I obtained the order from Pablo Dovalina about two years ago, and paid him ten dollars on it. This was in Webb county, Texas. Do not remember that any one else was present.” The order being shown the witness, he identified it.
¶2Was it necessary to introduce the order in evidence? We are of opinion that it was.
¶3A conviction was sought alone upon circumstantial evidence. The law applicable to such a case was not charged. However, as there was no charge requested, nor objection made because of the omission of a proper charge on the subject, and as such error is not relied upon in the motion for new trial, we do not feel called upon to reverse upon this ground.
¶4This conviction is for forgery. The evidence proves these facts and none others, viz: 1. That the order was forged by some person. 2. That the defendant uttered or passed the order. 3. That the defendant could not write. 4. There was no proof as to who did write the order, the State relying alone upon the above facts to show that the defendant procured some one to write the order, he having some sort of claim on Gonzalez.
¶5Do these facts render it reasonably certain that the defendant forged the order? This is very questionable; hence we would suggest that a count for uttering, in all such cases, be inserted in the indictment.
¶6Because the order was not introduced in evidence, the verdict is not supported by the evidence; wherefore the judgment must be reversed and the cause remanded.
¶7Reversed and remanded.
¶8Opinion delivered May 30, 1883.