¶1Tbe defendant who, it seems, is a lawyer, was indicted under tbe provisions of section 3638, Eevised Statutes 1889, for forging a check. Tbis was tbe first count in tbe indictment. Tbe second count was under tbe provisions of section 3634, lb., for selling to Harry S, Tuttle a forged cbeck.
¶2Tbe third count was framed upon section 3635, lb., and was for having in bis possession a forged cbeck with intent to pass, etc. Defendant excepted to all tbe instructions given. Tbe chief instruction given on tbe part of tbe State was in relation to defendant having in bis possession a forged cbeck, etc., with intent to pass, etc., and tbe jury were instructed that if, etc., they would find defendant guilty of forgery in tbe second degree “under tbe second count in tbe indictment,” etc.
¶3*210The jury returned into court tbis verdict: “We the jury find the defendant guilty as charged in the second count in the indictment and assess his punishment at 5 years in the State penitentiary.”
¶4Now, the second count of. the indictment as already seen was for selling a forged check, while the instruction of the court was for having a forged check in his possession with intent, etc. So that the instruction given was based upon a count and an issue on which defendant was not being tried, and was therefore erroneous.
¶5This error must result in the reversal of the judgment and the remanding of the cause, and it is so ordered.