Thomas v. State

129 So. 308, 23 Ala. App. 550, 1930 Ala. App. LEXIS 158

Opinion

RICE, J.

Appellant was convicted of the offense denounced by Code 1923, § 4158 — “Giving check or draft when funds insufficient to cover.”

The single count of the indictment, under which he was convicted, alleged that he “with intent to defraud did make or utter a cheek upon the Tennessee Valley Bank of Sheffield, Alabama, knowing at the time,” etc. (Italics ours.)

We.have searched the bill of exceptions diligently, but fail to find any evidence tending to support the allegation which we have italicised above. This was an essential averment, and, in the absence of any proof tending to show its truth, appellant was due to have given at his request the general affirmative charge in his favor. For the error in its refusal, the judgment of conviction must be reversed, and the cause remanded. May v. State, 22 Ala. App. 278, 114 So. 788.

The other questions apparent are simple, and may not arise on another trial. They will not be here treated.

Reversed and remanded.