Bradley v. State

90 So. 627 | Miss. | 1921

Holden, J.,

delivered the opinion of the court.

The appellant, Norman -Bradley, appeals from a conviction on a charge of uttering a forged check. The indictment charged the uttering of a certain check dated September 26,1918, for the sum of eighty-two dollars, while the proof offered by the state to sustain the indictment showed that the appellant uttered a check dated December 20, 1918, for eighty-two dollars and fifteen cents. This latter check was introduced in evidence by the state, but the check set out in the indictment was not introduced, nor was there any'proof that the check set out in the indictment was forged. Due objection was made by the defendant at the trial, and motion was made at the conclusion of the state’s evidence to discharge the defendant because of the variance between the check alleged in the indictment and the check offered in evidence by the state. The objections and motion were overruled by the court.

The appellant took the stand to testify in his own behalf, and put in evidence the check set out in the indictment, thus supplying the proof, which the state had failed to make, as to the check named in the indictment. But the proof in the record fails to show that the check in the indictment was forged. If it had been shown that the check introduced by the appellant was forged, then the appellant would have made out a case against himself under the indictment. But in the absence of this essential proof as to the forgery of the check charged to have been uttered by appellant, the state failed to sustain the indictment.

The prosecutor seems to have made no effort to make this necessary proof, but proceeded throughout the tidal upon the theory that the proof of the uttering of the forged check of December date for eighty-two dollars and fifteen cents' was sufficient to sustain the charge of uttering the forged check of September 26, 1918, for eighty-two dollars, as set out in the indictment. The instructions to the jury also erroneously proceeded on this theory.

The error of the court in trying the appellant for uttering the check set out in the indictment and permitting proof of his guilt by the introduction of an entirely different check is manifest,' and the judgment must be reversed and the case remanded for a new trial; it appearing, as we infer, that the necessary proof was at hand during the trial, and could have been offered by the state.

Reversed find remanded.