The appellant was convicted of knowingly uttering a forged instrument with intent to defraud and was sentenced to a term in the penitentiary. He seeks a reversal on the grounds that the trial court erred in denying his motion for a directed verdict, and that the evidence introduced against him is insufficient to support the verdict of guilty which was returned by the jury.
The record in the case establishes the following:
1. That the defendant cashed the check for $25 at Levines’ store in Clovis after he had presented his chauffeur’s license for identification, and received therefor some merchandise and cash, tie claimed that the maker of the check had given it to him in payment for three days of work.
2. That the purported signer of the check did not have an account in the bank on which it was drawn.
3. That the bank declined to honor the check.
4. That the defendant told the sheriff of Curry County that the work he had performed for the drawer of the check was, in part, hauling scrap lumber from one part of Clovis to another, and also hauling trash to a place where it had been dumped.
5. Some ten days after he had cashed the check he was taken from the jail by the sheriff to the places where the trash and lumber had been picked up, as well as unloaded, and the sheriff testified that he had been unable to discover any evidence of the materials being picked up or unloaded.
6. That the defendant had previous felony and misdemeanor convictions.
7. That the sheriff was unable to find anyone in Clovis who knew the purported signer of the check, T. J. Harris.
The trial court correctly instructed the jurors that before they could return a verdict of guilty it must have been proved to their satisfaction and beyond a reasonable doubt that, among other things, the check was forged.
There is ample evidence that the maker of the check did not have an account in the Clovis bank on which it was drawn, but there is not one iota of evidence that it was a forgery.
Both points urged as grounds for reversal must therefore be sustained and the conviction reversed and the cause remanded to the district court with instructions to set aside the verdict and sentence, and to discharge the defendant.
It is so ordered.
DAVID W. .CARMODY and MOISE, JJ., concur.
*365COMPTON, J., dissenting.
CHAVEZ, J., not participating.