
    Archie Miller, alias Henry Harper, Plaintiff in Error, v. The State of Florida, Defendant in Error.
    
    Opinion filed March 2, 1916.
    1. An indictment for forgery of a bank check is not fatally defective in calling the check set out in full an order for money.
    
      2. A conviction for forgery will be set aside when there is no evidence that the party accused ever had possession of the forged instrument, or that he could write at all.
    Writ of Error to the Circuit Court, Palm Beach County; H. Pierre Branning, Judge.
    Judgment reversed.
    
      Gordon R. Broome, for Plaintiff in Error;
    
      T. F. West, Attorney General, and C. O. Andrews, Assistant, for the State.
   Cockrell, J.

This is a writ of error to a judgment of conviction of the crime of forgery. The indictment alleges the forgery to consist in counterfeiting the name of the -payee in a check.

A motion in very general terms to quash the indictment was interposed and overruled. While the indictment may lack the certainty required by the Common Law, we think it sufficiently charged the crime to satisfy the requirements of our law. The instrument is set out in full and shows itself to be a check on a bank, and the fact that the pleader also styled it an order for money does not vitiate the indictment. Reading the whole indictment it appears with sufficient clearness that the crime consisted in forging the payee’s name by endorsement on the check, and this was the case sought to be made by the State at the trial.

The evidence gives us greater concern. It is not shown that the accused cashed the check, and only by a remote probability that he had the check in his possession. The State attempted to prove the handwriting by a deputy sheriff. The court ruled out writings that the accused made at the preliminary trial before the committing magistrate, and we find nothing else in the record to prove that this witness ever saw any writing of the accused. There is testimony that the witness had intercepted letters and notes sent from the jail by the accused where 'he was being held awaiting trial, but the witness does not testify that he saw this man write them. In fact putting aside the testimony stricken by the court there is no proof that he could write at all.

We are, therefore, unwilling to sustain a conviction upon this evidence, and the judgment is accordingly reversed.

Taylor, C. J., and Shackleford and Ellis, JJ., concur.

Whitfield, J., absent on account of illness.  