
    PARROTT v. STATE.
    (No. 11489.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    False pretenses <3=>49(i) — Evidence held insufficient to sustain conviction, wh^re check upon which prosecution for swindling was based was not introduced in evidence.
    In prosecution for swindling, where worthless check upon which prosecution was based was not introduced and record was bare of any proof whatever that it was presented to bank or refused, evidence held insufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from Nacogdoches County Court; F. F. Marshall, Judge.
    Frank Parrott was convicted of swindling, and he appeals.
    Reversed and remanded.
    Adams & McAlister, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, swindling; penalty, $25 fine and ten days’ confinement in the county jail.

All the evidence given at the trial consists of four short paragraphs given by witness Rich. The substance of it is that appellant gave a check to one Arriola, who indorsed same to witness Rich, who in turn indorsed same to a “Lufkin bank, and it was turned down by the bank when presented.” Apprised of this, appellant agreed and did give to Rich a second check and received from Rich his first check. About this, witness testified:

“Frank Parrott gave me the check upon which he is being prosecuted, and it was turned down by the bank, and I sent word to Mr. Par-rott by mail that it had been refused by the bank 15 days before this prosecution was instituted, and it has never been paid yet. * * * The first check was no good but I would not have given it back to Frank if he had not given me this eheck. * * * I considered it worth its face value because of Mr. Arriola’s indorsement.”

The point is presented that since the check upon which the prosecution is based is shown to have been given for a former worthless check, the evidence is insufficient to consti? tute swindling, as nothing of value passed. The quoted testimony shows that proof was made, apparently without objection, that the check was worth its face value. It seems plain that an indorsed check might be a “thing of value,” as those words are used in article 1545 (4) of the Penal Code.

The latter check, upon which this prosecution was based, was not introduced in evidence, and the record is utterly bare of any proof whatever that it was ever presented for payment to the bank on which it was drawn or payment ever refused by such bank, or, for that matter, that it was ever legally presented for payment to any bank. It was turned down by “the bank.” What bank? The information avers that Frank Parrott “then and there had no good reason to believe that said check would be paid by said bank when the same would be in the ordinary course of business presented to said bank for payment, and said check was in due course of business presented to said bank, and payment of said check was refused by said bank for want of sufficient funds,” etc. There is an entire absence of testimony to support this allegation.

Any discussion by us of the constitutionality of the so-called “hot check” law would be based upon an hypothesis not sho-wn to exist in the instant case. We uniformly decline to be drawn into the discussion or decision of questions that are purely academic.

Because of the insufficiency of the evidence, the judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      ®=3kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     