
    BAKER v. STATE.
    No. 17564.
    Court of Criminal Appeals of Texas.
    May 8, 1935.
    G. A. Walters, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for misdemeanor swindling, punishment being assessed at a fine of $50 and sixty days’ • imprisonment in the county jail.

Prosecution was based upon a complaint and information which alleged in substance that in payment for certain described things appellant executed a check for $53.62 drawn on the “Ozona National Bank/’ the check being given at San Saba. It was further averred that at the time the check was given appellant did not have sufficient funds in said Ozona National Bank to pay said check, and had no good reason to believe said check would be paid when presented to said bank in the ordinary course of business. It was further averred that said check was in due course of business presented to said bank for payment, and that payment was refused for want of sufficient funds.

C. A. Thornblom, to whom said check was given, detailed the circumstances under which he received said check from appellant, and testified that he deposited the check in the City National Bank in San Saba; that he did not present it to the Ozona National Bank for payment; that “after it had been gone for a short time it was returned unpaid.” He notified appellant that it had not been paid and received no reply. The check was still unpaid at the time of the trial. No witnesses other than Thornblom testified to any fact. Appellant urges that the evidence does not support the conviction. The contention must be sustainéd. There" is an entire failure-of proof that the check was ever presented for payment to the bank upon which it was drawn. The case is so similar to that of Fortune v. State (Tex. Cr. App.) 66 S.W.(2d) 304, that it is only necessary to .refer to such case, and those cited in that opinion to make clear the reasons calling for reversal of the judgment.

The judgment is reversed and the cause remanded.

MORROW, P. J., absent.  