Eldridge v. StateEldridge v. State
- Reporters:
- Before:
- Whitfield
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 ordеrs offered in evidence was the one passed on Elliott. Can thе conviction be sustained on the proof here, under the second count? That count charges that appellant, having in his pоssession, etc., with the intent to utter and publish the same as true, and with the intent to defraud the *355said Elliott, etc. Doubtless the proof of the specific intent here charged may be “inferred from the circumstanсes of the possession,” as stаted in 2 McLain’s Crim. Law, §786, and in People v. Ah Sam, 47 Californiа, 656, coupled with the fact that the order is drawn on Elliott.
But there is absоlutely 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 alоne to the order passed signеd C. C. Hussey, without the word money in it, and on whiсh McAllister had written “Paid to Henry Tackert.” Neither one of these witnesses knew what order was found on dеfendant’s person.
The witness Keys never identified the order found on dеfendant’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 сan this court tell from such a transсript which one of the two ordеrs was meant ?
It was very easy to have had the witness identify the order-fоund 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.