¶1At a former day of this term this case was affirmed. In the court below there were but three grounds assigned in the motion for new trial why the judgment should be set aside:
¶21. That the indictment charged no offense under the laws of this State, in that the instrument was not such an instrument upon which forgery could be based, and if such an instrument, the indictment did not contain the necessary explanatory averments.
¶32. That the court's charge was erroneous in that it permitted the jury to convict defendant of passing a forged instrument if Jasper N. Haney was his agent, without requiring the jury to find that said Haney was an innocent agent of appellant.
¶43. Because the evidence was insufficient to support the verdict, in this, that the evidence failed to show that Haney and appellant were connected in the transaction, and if acting for appellant that Haney was not an innocent agent.
¶5These and these only were the questions raised in the motion for new trial in the court below, and in the bills of exception filed. These were the only questions presented in the briefs filed on the original hearing and in the able argument made on the submission of the case. Consequently, they were the only questions considered and passed on in the original opinion, and were the only questions we had in mind at the time of writing the opinion. Had the questions now sought to be raised for the first time in the motion for rehearing been raised in the motion for a new trial in the court below, or raised and discussed at the time this case was originally submitted to this court so that we could have had them in mind, some language is used in the original opinion, in referring to DeLay's connection with the transaction, perhaps should not or would not have been used. But no such questions being presented, and not having them in mind, if in the original opinion we said or used any language which would be construed to mean that the record demonstrated that DeLay was a principal, we should not have used such language, for what we intended to say and hold was, that the testimony raised the issue with that force and cogency that the jury would be authorized to so find if the question had been submitted to them. But neither in the indictment, nor in the charge, is the question of DeLay's connection with the transaction charged or submitted *17 to the jury. With these remarks to make it clear what we intended to say and hold in the original opinion, we will discuss the questions which are now raised for the first time in the motion for rehearing in this court, and which were not raised in the trial court, nor discussed in the briefs filed in this court.
¶6As to the indictment, appellant now concedes that the indictment does charge forgery and passing a forged instrument as defined by articles 947 and 949 of the Penal Code, but he contends that the court in his charge did not submit these provisions of the code, but instead of doing so, submitted forgery and passing a forged instrument as defined by articles 924 and 937. If this is true, this could not affect the validity of the indictment. Under article 924 forgery is defined as the making of a false instrument, purporting to be the act of another, which if true would have created, increased, diminished or discharged or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever. This is the general statute defining forgery, but the making of forged instruments affecting land titles became so general at one time in this State the Legislature deemed the punishment affixed to ordinary forgery insufficient and passed a special statute governing this matter, affixing a much heavier penalty, and so defining forgery as affecting lands as to include any character of instrument which would affect the title to land. The instrument upon which the forgery is based in this case is one which would, and shows on its face to be one which would, affect the title to land, and comes under articles 947 and 949 of the Code, and these are the offenses charged in the indictment, and as held in the original opinion, the indictment does charge an offense under those provisions, which, apparently, is conceded by appellant in his motion for a rehearing, his insistence now being that the court did not submit to the jury the offenses charged in the indictment, but submitted forgery and passing a forged instrument as defined by articles 924 and 937 instead of submitting these offenses as defined by articles 947 and 949. If the punishment prescribed was the same we might deem it immaterial, but for passing an ordinary forged instrument the punishment is not less than two nor more than five years, while the punishment for passing a forged instrument affecting title to land the punishment is not less than five nor more than twenty years. In this case the punishment assessed was only two years, and not within the minimum and maximum terms for passing a forged instrument affecting land titles, and, therefore, appellant has been assessed a punishment not authorized under the indictment. Had our attention been called to the fact that the punishment authorized to be assessed by the jury, and which was assessed by it, was not within the period of time as fixed by the Legislature, the case would not have been affirmed, but at that time we were only discussing the questions raised in the court below as shown by the record. As said before, this question was never raised until the motion for rehearing was filed in this court, but we deem it such an error as *18 can be raised at any time, for the courts have no right to assess a punishment not provided by the laws of this State for the commission of any offense.
¶7Another question raised in the motion for rehearing in this court and not raised in the trial court, is that as the indictment charged a passing on DeLay, and the evidence would show that DeLay was a principal in the commission of the offense, it could not have been passed on him as true, and therefore the evidence would not sustain the verdict. If the evidence conclusively showed that DeLay was a principal in the commission of the offense, this ground might be well taken, because one would not be guilty of passing a forged instrument if he passed it on a person who knew it was a forged instrument, they both understanding and agreeing that it was to be passed and used as true on a third person not named in the indictment. But the record in this case does not conclusively show that DeLay was a principal in the commission of the offense. It raises the issue that he might have been in the conspiracy that is shown to have existed between appellant and Haney to pass the forged instrument, yet the fact such an issue was raised by the evidence would not entitle appellant to a new trial on that ground. If appellant desired to raise that issue he should have done so in the trial court, and then it would have been proper for the court to have instructed the jury, that if from the evidence they found that DeLay had entered into a conspiracy with appellant and Haney to pass this instrument on the person purchasing from DeLay, or his attorney, and that at the time he received it from Haney he knew it was forged, appellant should be acquitted; but if they found that at the time DeLay received same from Haney he did not know it was forged, appellant would be guilty, if they found the instrument was forged, and that appellant and Haney had entered into a conspiracy to pass it on him, they knowing it was forged, or if they found that Haney or DeLay did not know it was forged when Haney delivered it to DeLay, appellant would be guilty. However, this question should have been raised in the trial court by an exception to the charge of the court, when presented to counsel, and as they did not do so at that time, it could not be raised on a motion for rehearing in this court, since the amendment to article 743 of the Code of Criminal Procedure.
¶8We have said this much in view of another trial, as it will be necessary to grant a rehearing and reverse and remand the cause because the punishment authorized by the court and assessed by the jury is not within the terms fixed as punishment by the Legislature for this character of offense. And as the case will be reversed on this ground, we would suggest to the prosecuting attorney that he have returned a new indictment, in which it would be charged in one count a passing on DeLay, and in another count a passing on Mr. Mathis, the attorney for the prospective purchaser to whom DeLay was selling the land, so that the indictment would cover the case as made by the evidence. For if the jury should find that DeLay entered into the conspiracy to pass the instrument at the time he received it, knowing it was forged, and *19 with such knowledge passed it on the attorney passing on the title, appellant under the evidence in this case would be guilty as a principal in the passing of the instrument on the attorney; if DeLay was not in the conspiracy, at the time he received it, appellant would be guilty as a principal with Haney in passing it on DeLay, under the evidence now before us.
¶9The motion for rehearing is granted, and the cause is now reversed and remanded
¶10Rehearing granted and reversed and remanded.