
    Mike Deal v. State of Mississippi.
    [50 South. 495.]
    CRIMINAL Law and Procedure. Forgery. Evidence. Forged instrument not offered. ' •
    
    Where the instrument charged to have been forged is in possession of the state and available as evidence, a conviction for forging it cannot be sustained without offering it in evidence.
    Neom the circuit court of Oaliborne county.
    HoN. JohN M. Bush, Judge.
    Deal, appellant, was, jointly with another, indicted for forgery, and, a severance being obtained, was separately tried, convicted, and sentenced to the penitentiary for two years, and appealed to the supreme court. The opinion of the court states the facts.
    
      R. B. Anderson, for appellant.
    The state showed that appellant and one Jones went into the store of Nosser and that Jones presented a check payable to John Miller, that Nosser asked Jones if he, Jones, was named John Miller and also asked appellant what his companion’s name was, and appellant replied that it was John Miller. Jones bought a shirt, after endorsing the check, and received therefor the shirt and cash equal to the face of the check less the cost of the shirt.
    The forged instrument was not offered in evidence, nor was the failure to introduce it explained. How could the jury find that appellant was guilty of forging a particular instrument when none was offered by the state? The law requires the state to produce the forged paper.
    “The alleged false writing must be produced in court against the accused or it must be accounted for by showing. that the •accused bas possession of it or that it has been destroyed.” 5 Am. & Eng. Ency of Law (2d ed.) 854; Morton v. State, 30 Ala. 527; Manaway v. State, 44 Ala. 375; Gross v. People, 192 Ill. 291; Commonwealth v. Snell, 3 Mass. 82; State v. Oallendine, 8 Iowa, 288; United States v. Britton, 24 Eed. Oas. No. 14,650; People v. Kingsley (N. Y.), 14 Am Dec. 520; State v. Loiory, 42 W. Va. 205; 19 Oyc. 1412, which says ■“the instrument alleged to be forged must be produced at the trial, etc.,” citing the above cases.
    The same doctrine is laid down by 13 Am. & Eng. Ency. of Law (2d ed.) 1111, and the same authorities cited.
    Again the introduction of the forged check in this' instance was especially necessary because one of the essentials to the crime is that it must be such an instrument as would apparently be capable of effecting a- fraud and working injury. Without inspection by the jury, how could this be proved to their satisfaction ?
    From the testimony of Nosser, it will be seen that the conviction was obtained upon the bare facts that appellant is declared to have said that Jones’ name was John Miller. This is npt sufficient. The check described by Nosser was John Miller’s check, and the indictment sets out a check drawn by Luster in Miller’s favor.
    Still another proposition: Nosser asked Jones if his name was Miller, to which query he seems not have received a reply, and then he says that the store was so crowded he made the same inquiry of Deal, who simply said “Yes.” The use of the word, “Yes,” is the extent of the proof of Deal’s complicity.
    Miller was not introduced, and it was not shown that Nosser or any other person was defrauded or attempted to be defrauded.
    
      George Butler, assistant-attorney general, for appellee.
    The charge in the case was based upon a check payable to •John Miller, illegally endorsed in the name of John Miller by appellant and one Jones, and palmed off as valid on Nosser. Tbe sole contention bere is that tbe check was not formally introduced in evidence on tbe trial of this cause, but it seems to be shown by implication that tbe check was produced on tbe bearing. Thus it appears in tbe record that tbe check was banded to a witness, Luster, tbe maker of tbe check, who. testified that it was tbe original check issued by him to Jobn Miller. Another witness, Green, examined tbe check, which is manifestly tbe check in question, and testified with reference to tbe same. Nosser was banded tbe check and testified that be cashed it after being assured by Jones that tbe party was Miller.
    Certainly tbe mere failure to introduce tbe check in evidence is not sufficient to work a reversal in this case.
    When tbe state rested its case a motion was made to exclude tbe evidence and direct a verdict for appellant, and it was nowhere suggested as a ground for this motion that tbe check was not introduced.
   Mates, J.,

delivered tbe opinion of tbe court.

This is an indictment against appellant for forgery. ' He was tried, convicted, and sentenced to tbe penitentiary for two years, and appeals.

Tbe indictment charged appellant with forging tbe name of one John Miller to a certain check drawn by one Luster and made payable to tbe said Miller, and in tbe indictment is set out an exact copy of tbe check. It is not alleged in tbe indictment that tbe check was lost or destroyed, or that same was in tbe possession of accused and could not be produced by tbe states nor is there any notice served on accused to produce tbe check. In this attitude of affairs it appeal's that, though tbe state bad tbe check in its possession at tbe time of tbe trial, it was never introduced in evidence by tbe state. At tbe conclusion of tbe trial tbe defense asked for a peremptory instruction to find for defendant, and same was refused by tbe court, and this is tbe error assigned here.

Since it plainly appears from tbe record that tbe check in •question was in tbe bands of tbe state and available as evidence, it is our view tbat its introduction was essential, and tbe failure on tbe part of tbe state to offer it was fatal to tbe conviction.

Reversed and remanded.  