1. The evidence authorized the finding of the jury, and the trial judge did not abuse his discretion in overruling the motion for a new trial.
2. There is no merit in the assignment of error based upon the excerpt from the charge of the court; nor is the exception that the court erred by intimating an opinion as to what had been proved sustained by” the record. It is permissible for the trial judge to state his recollection of what has been testified, when, in doing this, he does not intimate any opinion as to the weight which the jury should attach to the testimony, or that any statements which have been made are true.
3. There was no error in the ruling upon the admissibility of the testimony to which objection was made. As to this point the decision is controlled by the ruling of the Supreme Court in Farmer v. State, 100 Ga. 41 (28 S. E. 26). An intent to defraud is not presumed by law, but is a matter of fact, to be determined by a jury. “A single act or representation, in many cases, would not be decisive, especially where the accused has sustained a previous good character. But when it is shown that he made similar representations, about the same time, to other persons, and by means of such representations obtained goods, all of which were false, the presumption is greatly strengthened that he intended to defraud.” Trogdon v. Commonwealth, 31 Grattan (72 Va.), 862.
4. The solicitor-general is not permitted to refer to the fact that the defendant has not made a statement, but he may properly comment upon the fact that the accused has failed to adduce testimony in rebuttal of evidence introduced by the State, tending to show his guilt.
Judgment affirmed.
In the motion'for a new trial it is alleged that the court erred in charging the jury as follows: “The court instructs you, in the same connection, that if you believe, from the testimony, that, for the purpose of obtaining that amount of money from the West End Bank, he had in his possession such a check, that it was fictitious and fraudulent in the manner alleged in the indictment, and that in the course of commercial transactions .or business relations he passed that check into the bank and obtained credit thereon, and then issued a check upon the bank, and in that manner procured from it the fund for which he had obtained credit, and if you believe beyond a reasonable doubt that that was done, and that the defendant did that, and that he adopted that plan for the purpose of getting the money by fraud, and he did get it by fraud, in the manner alleged in the indictment, it would be your duty to convict.” In argument at the trial, counsel for the accused contended that Miss Tunison, “who they said paid the money,” failed to identify the accused as being the man to whom she paid it, and that the check was not in evidence. The solicitor-general contended that the check had been admitted in evidence. “The court stated, in reply to counsel who addressed the court, that, as he recollected the evidence, one of the witnesses had testified that the signature on the check was the signature of the defendant, who stated that his name was "Vandiver, and the young lady testified that she paid the money to a man who represented himself to be "Vandiver; and that if the check had not been admitted in evidence, the court wanted it understood that it was admitted.” This statement of the judge is complained of, as being a declaration or intimation to the jury as to what had been proved. Over the objection that it did not relate to the transaction charged in the indictment, and was irrelevant and prejudicial to the accused, the court admitted evidence that in June, 1911, the accused made various deposits in the West End Bank, including checks payable to J. H. Vandiver and indorsed in that name, and drew various checks in that name on the same bank; this evidence being offered for the purpose of showing a scheme to deceive the bank, by which the accused obtained money on the check described in the indictment. And over a like objection, the court allowed the State to introduce, as bearing on the question of fraudulent intent,' evidence that at different times near the date alleged in tbe indictment, the accused obtained money from different sources on worthless checks drawn on different banks and signed by him in various names. The admission of the evidence in question is complained of in the motion for a new trial. The solicitor-general, in his argument to the jury, stated that the defendant by his own acts admitted his guilt; that he did not produce a witness to disprove it. Counsel for the accused objected to this statement and moved that the court declare a mistrial, upon the ground that the solicitor-general had “argued the failure of the defendant to make a statement.” The solicitor-general stated that he did not intend to argue that the defendant did not make a statement, but intended to refer to the defendant’s failure to introduce evidence. The court declined to declare a mistrial, and told the solicitor-general that he could “explain that to the jury and go on with the argument;” and this was done. It is alleged that the court erred in not declaring a mistrial. Mozley & Moss, for plaintiff in error. Hugh M. Dorsey, solicitor-general, E. A. Stephens, contra.