| Miss. | Nov 15, 1898
delivered the opinion of the court.
It is clear that no conviction could have been had in this case, on the testimony in the record, under the first count. Neither of the orders offered in evidence was the one passed on Elliott. Can the conviction be sustained on the proof here, under the second count? That count charges that appellant, having in his possession, etc., with the intent to utter and publish the same as true, and with the intent to defraud the
But there is absolutely no identification in the proof of the order signed “Hussey,” as being the one found in the possession of the defendant. The testimony of Elliott and McAllister relate alone to the order passed signed C. C. Hussey, without the word money in it, and on which McAllister had written “Paid to Henry Tackert.” Neither one of these witnesses knew what order was found on defendant’s person.
The witness Keys never identified the order found on defendant’s person. Two orders were in evidence. He was asked, “ Look at that paper and see what it is,” and answered, “That is the order.” What paper? What order? Which one of the two ? How can this court tell from such a transcript which one of the two orders was meant ?
It was very easy to have had the witness identify the order-found on defendant’s person, as the one signed “Hussey,” in such a way as would make the record show the identity. Unless we are to assume, without proof rn the record, that the order-signed “Hussey” was the one found in defendant’s possession, we cannot affirm this judgment.
Judgment reversed, verdict set aside and cause remanded.