
    33390.
    Cosby v. The State.
    Decided April 3, 1951.
    
      Colley & Orr, for plaintiff in error.
    
      J. Cecil Davis, Solicitor-General, contra.
   MacIntyre, P.J.

“On a prosecution under Code § 13-9933, for passing-

worthless checks, the intent to defraud cannot be presumed until it is shown by the evidence that the defendant did not have sufficient funds in or credit with the bank upon which the check was drawn to pay it at the time it was presented for payment” (Crain v. State, 78 Ga. App. 806, 52 S. E. 2d, 577); and, where, in such a prosecution, there is no evidence that the check, which was alleged to have been drawn with the intent to defraud, was ever presented to the bank upon which drawn; and there is "not other evidence from which an intent to defraud could be inferred, a verdict of guilty under such Code section is contrary to the evidence and the law (McCard v. State, 54 Ga. App. 339, 187 S. E. 850; Meena v. State, 66 Ga. App. 99, 17 S. E. 2d, 86), and a new trial must be granted.

The court erred in overruling 'the motion for a new trial.

Judgment reversed.

Gardner and Townsend, JJ., concur.  