
    SMITH v. STATE.
    No. 25466.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1951.
    Harris E. Lofthus, Amarillo, for appellant.
    George P. Blackburn, State’s Atty., of Austin, for the State.
   DAVIDSON, Commissioner.

The conviction is for passing a forged instrument; the punishment, four years in the penitentiary.

The sole question presented for review is the sufficiency of the evidence to support the conviction.

A check for $61.50, purporting to he signed by Mrs. P. R. Roach and drawn upon The Amarillo National Bank and payable to appellant, was presented to Ray Smith, an employee of a grocery store, for payment. After appellant had endorsed the check, Smith gave him the $61.50 in cash.

Smith, testifying for the state, said that he had at a prior time cashed a check for appellant which was signed by a Mrs. Roach, for whom appellant represented he was doing some work. There is no testimony as to the initials of the Mrs. Roach mentioned. Smith testified that he presented the alleged forged check to the bank for payment; whether the check was or was not paid by the bank is not shown. If payment was refused by the bank, there is no such direct testimony.

We have examined Smith’s testimony with meticulous care and nowhere do we find that he testified that the check was not paid by the bank. There is nothing on the check indicating that it was ever presented to the bank for payment; nor is there testimony that Mrs. P. R. Roach, the purported maker of the check, did not have an account at the bank.

The foregoing are the facts upon which this conviction rests.

We are constrained to agree with the appellant that the facts do not warrant the conviction.

The judgment is reversed and the cause remanded.

Opinion approved by the Court  