
    FRED HUDLIN v. STATE.
    
      No. A-7668.
    Opinion Filed April 4, 1931.
    (297 Pac. 818.)
    Vance & Bliss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was jointly informed against with S. A. Clingan, charged with unlawfully, feloniously, and fraudulently uttering and passing a bogus check in the amount of f72.08; he was tried separately, convicted and sentenced to pay a fine of $250, from which sentence and judgment the defendant has appealed.

The evidence, briefly stated, is that the defendant in this case and S. A. Clingan made an agreement that defendant would deposit in the bank $100 for Clingan to use in buying bogs and cattle, and tbe profit would be divided between tbe two. Tbe defendant deposited tbe $100 in tbe First National Bank of Hulbert, and advised tbe bank to honor Clingan’s checks on tbe deposit. This arrangement was made about May 1, 1928. Clingan bought some bogs and cattle, and made checks on tbe bank, signing tbe defendant’s name by S. A. Clingan. Tbe defendant made several deposits in tbe bank, and Clingan drew several checks which were paid. On July 21, 1928, as shown by tbe evidence of tbe officers of tbe bank, there was to tbe credit of defendant $449.63. On July 21, 1928, Clingan drew a check on tbe bank for $72.08, signing. tbe same “Fred Hudlin by S. A. Clingan.” The testimony shows that this defendant knew nothing about this check having been drawn by Clingan, and did not learn of it until after a warrant bad been issued for defendant’s arrest. Tbe check was not presented to tbe bank for payment until about the 31st of July, several days after it was given by Clingan. There is very little conflict in tbe testimony; tbe only conflict being that tbe defendant authorized tbe bank to recognize checks with bis name signed to them by S. A. Clingan to tbe amount of $100. At tbe close of tbe testimony, tbe defendant demurred to tbe state’s evidence on tbe ground that it is wholly insufficient to constitute tbe crime alleged in tbe information. Tbe demurrer was overruled, and defendant saved an exception. Tbe first assignment of error is that tbe court erred in overruling the motion of plaintiff in error for a new trial. This assignment covers all tbe questions raised by tbe defendant; that is, the sufficiency of tbe evidence to sustain tbe conviction. Tbe defendant insists that, as the check was given by Clingan, and be had no knowledge of tbe purchase of the hogs, there was no guilty intent upon bis part; that bis conviction is not sustained by sufficient evidence. The theory of tbe state is that tbe defendant is responsible as a principal for Clingan’s acts, arguing that tbe defendant bad unqualifiedly put Olingan into the business, and bad authorized transactions such as tbe one in which Olingan gave this check. An examination of tbe record shows that tbe defendant Olingan was tried and acquitted of tbe charge of issuing tbe bogus check. Under tbe law, any person who, with intent tO' cheat and defraud, shall obtain, or attempt to obtain, from any person, firm, or corporation any money or property or valuable thing of tbe value of more than $20, is guilty of a felony. In Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260, in tbe first paragraph of syllabus, tbe court said:

“When, in tbe trial of a criminal case, tbe proof introduced on behalf of tbe state is insufficient to sustain a conviction, it is the duty of the trial court to advise tbe jury to return a verdict of not guilty.”

In Teague v. State, 10 Okla. Cr. 43, 133 Pac. 1134, tbe court in syllabus said:

“To sustain a conviction, it should appear not only that tbe offense was committed, but tbe evidence inculpating tbe defendant should be so to a degree of certainty, transcending mere probability or strong suspicion.”

It is always incumbent on tbe prosecution to establish each and every material element of tbe crime charged before tbe jury is warranted in finding tbe defendant guilty. Crouse v. State, 39 Okla. Cr. 127, 263 Pac. 681.

There is no- evidence to show tbe defendant bad knowledge that Olingan had issued tbe check or that tbe defendant intended to defraud any one. Tbe verdict and judgment is contrary to tbe law and tbe evidence.

Tbe case is reversed.

CHAPPELL, J., concurs. EDWARDS, J., absent, not participating.  