Munch v. State , 25 Tex. Ct. App. 30 ( 1888 )

White, Presiding Judge,

Appellant’s plea of former conviction was defective in not sufficiently setting out the portions of the former record and judgment necessary to illustrate it, and it was excepted to by the State. The exception, however, does not appear to have been acted upon by the court. On the contrary, the plea was treated as a valid plea, and evidence pro and con upon it was adduced at the trial.

Under the circumstances, it was the province and duty of the jury to pass upon and say whether it was true or untrue. This they were not required to do, because the court failed and omitted to submit it to them in the charge. This was error, for which the judgment must be reversed. (See the question fully discussed in Gresham v. The State, 19 Texas Ct. App., 504.)

Reversed and remanded.