
    28328.
    SPIVEY v. THE STATE.
    Decided October 1, 1940.
    
      L. F. Watson, Emory S. Baldwin Jr., for plaintiff in error.
    
      Allan G. Garden, solicitor-general, contra.
   Gardner, J.

The defendant was charged with giving a worthless draft in payment for live stock which he had purchased. The indictment alleged that he represented to the seller, when he delivered the draft to him, that he had made arrangements with the drawee for it to be paid, and did represent that “it would be paid . . upon presentation, . . and said draft was not paid upon its presentation.” It was also alleged that all the representations made were false. The evidence for the State affirmatively showed that the draft was never presented, before the indictment, to the drawee for payment, nor does the evidence otherwise disclose that it would not have been paid upon presentation. This was a material and necessary allegation in order to establish loss to the payee. While the evidence was sufficient to show that the defendant had not made arrangements with the drawee as he had represented, it was also necessary to show that the draft was presented for payment. This was not done. Refusal to pay when presented was an essential element of the crime alleged, and was not surplusage as contended by the State.

Judgment reversed.

Broyles, C. J., and MacIntyre, J., concur.  