| Miss. | Oct 15, 1917
delivered the opinion of the court.
The appellant, Gibb May, was indicted in the circuit court of Leflore county for unlawfully uttering and publishing as true a forged check for the sum of $4.00 drawn on the Bank of Commerce of Greenwood, Miss., and signed “T. A. Bowels.”
He was convicted by the jury and sentenced by the judge to serve a term of two years in the state penitentiary, from which sentence and judgment this appeal is prosecuted.
The testimony oí the state showed that the defendant got a merchant in Greenwood to cash this check. It was proven that no such man as T. A, Bowels had an account with the Bank of Commerce, and no such man was shown to have lived in the city of Greenwood. The testimony showed that the defendant was an ignorant negro and could neither-read nor write. The testimony also showed that there was a party by the name of T. A. Bowles who lived in Greenwood, who was a doctor, and that the defendant, at the time he got this check cashed, told the party who-cashed it that it was Dr. Bowles’ check.
After the introduction of all the state’s testimony, the defendant made a motion to exclude same.' Without setting forth in full the defendant’s testimony, it is sufficient to say that, if the jury had believed it, he would have been acquitted. The indictment in the case alleged that the check uttered was a forged check, and that the defendant intended to injure and defraud certain per-
The indictment did not allege that this was an attempt to publish or utter a forged check purporting to be that of T. A. Bowles. The testimony, however, all tended to show this. The words “Bowles” and “Bowels” are not idem sonans; the first being' a word of one syllable, the second a word of two syllables. The different positions-of the letter “1” in the two words make two entirely different words. It was necessary for the indictment to have alleged the above extrinsic explanatory facts.
“Where extrinsic facts are necessary to be known and considered, along with the writing, in order to constitute forgery, an indictment therefor must be set out such facts, as well as -the instrument itself.” Griffin v. State, 96 Miss. 309" court="Miss." date_filed="1909-10-15" href="https://app.midpage.ai/document/griffin-v-state-7990530?utm_source=webapp" opinion_id="7990530">96 Miss. 309, 51 So. 466; France v. State, 83 Miss. 281" court="Miss." date_filed="1903-10-15" href="https://app.midpage.ai/document/france-v-state-7989063?utm_source=webapp" opinion_id="7989063">83 Miss. 281, 35 So. 313; Agee v. State, 113 Ala. 52" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/agee-v-state-6516926?utm_source=webapp" opinion_id="6516926">113 Ala. 52, 21 So. 207.
It therefore follows that there was a variance between the indictment and proof, - and the motion to exclude the testimony of the state should have been sustained.
The court granted the state the following instruction:
“The court instructs the jury that in this case you do not have to believe that the defendant can read or write, or that he forged this check in question; it is only necessary that you believe from the evidence in this case beyond a reasonable doubt that he uttered or passed or undertook to pass said check knowing the same to be forged or counterfeit, and if you believe from the evidence in this ease beyond a reasonable doubt that the defendant, Gibb May, did pass- or utter or undertake to utter said check knowing it to be false, then you will find him guilty as charged. ’ ’
The indictment was drawn under section 1192, Code of 1906. One of the necessary ingredients of the crime therein charged is that the same shall be uttered “with intent to defraud.” The above charge omitted these words. In the statutory definition of murder, section
Reversed and remanded.