
    JACKSON v. STATE.
    (No. 6338.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.)
    Banks and banking <&wkey;2l — Debtor held not guilty of issuing check intended to circulate as money.
    Where debtor gave creditor a check without sufficient funds in the bank, went to the bank the following morning to make a deposit to meet the check, but on hearing'that the check had been turned over to officers, took the money directly to the creditor and paid him, instead of depositing it in the bank, he .was' not guilty of issuing a check intended to circulate as money, in violation of Pen. Code 1911, art 514, in the absence of evidence that check war issued to creditor for any other purpose than to pay debt.
    Appeal from County Court, Harrison County; W. H. Strength, Judge.
    L. A. Jackson was convicted of unlawfully issuing a check intended to circulate as money,⅝ and he appeals.
    Reversed, and prosecution ordered dismissed.
    W. B. Lea, of Marshall, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The record in this case presents a novel situation, to say the least. Appellant was prosecuted and convicted under an information as follows:

“Now comes P. M. Scott, county attorney of Harrison county, Texas, upon affidavit of Ellis Johnson, hereto attached and made a part hereof, and in behalf of said state presents in the county court of Harrison county, Texas, at the September term, 1920, of said court, that L. A. Jackson, on or about the 18th day of October, 1920, in the. county of Harrison and state ^ of Texas, and before the making and filing of this information, did then and there, in the county and state aforesaid, unlawfully issue a check intended to circulate as money, the same being as follows to wit:
“ ‘Marshall, Tex. Oct. 18, 1920.
“ ‘The Marshall National Bank (88-46) of Marshall, Texas: Pay to A. A. Gorrell or order
⅛ oarer- ⅜2.57 Two and S7Aoo dollars.
“ ‘L. A. Jackson.’
—against the peace and dignity of the State.
“E. M. Scott,
“County Attorney, Harrison County, Texas.”

Appellant was convicted and fined $10.

Tlie prosecution in this case seems to have proceeded under article 514 (368) P. C., which is as follows:

.“If any person within this state shall issue any bill, promissory note, check or other paper * * * to circulate as money, he shall be fined not less than $10, nor more than $50 for each bill, promissory note, check or other paper so issued.”

The undisputed evidence shows that on October 18, 1920, appellant owed the mercantile establishment of A. A. Gorrell in the city of Marshall an account amounting to $2.57. He gave the check in question in payment of the account. Gorrell claimed that appellant told him he had the money in the bank to cover the check. Appellant claimed that he told him he did not know whether he had sufficient funds to cover the cheek or not, but that he would make a deposit the next morning' sufficient to cover it. The check was presented to the bank, and payment refused, because there were not sufficient funds. Appellant claims to have gone to the bank the next morning to make the deposit, but found the check had been turned over to the officers, and instead of making the deposit took the money and paid Gorrell. This is practically all the evidence in the case.

There is not one line of testimony in the record which would indicate that the cheek was issued by Jackson for any other purpose than checks are ordinarily issued, to wit, to pay a debt, and on what theory the prosecution proceeded, under the statute in question, to charge'him with issuing a check with the intention that it should circulate as money, is more than we have been able to ascertain from the record.

The judgment of the trial court is reversed, and the prosecution ordered dismissed, so far as this information is concerned. 
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