delivered tbe opinion of tbe court.
This is an indictment against appellant for forgery. ' He was tried, convicted, and sentenced to tbe penitentiary for two years, and appeals.
Tbe indictment charged appellant with forging tbe name of one John Miller to a certain check drawn by one Luster and made payable to tbe said Miller, and in tbe indictment is set out an exact copy of tbe check. It is not alleged in tbe indictment that tbe check was lost or destroyed, or that same was in tbe possession of accused and could not be produced by tbe states nor is there any notice served on accused to produce tbe check. In this attitude of affairs it appeal's that, though tbe state bad tbe check in its possession at tbe time of tbe trial, it was never introduced in evidence by tbe state. At tbe conclusion of tbe trial tbe defense asked for a peremptory instruction to find for defendant, and same was refused by tbe court, and this is tbe error assigned here.
*85Since it plainly appears from tbe record that tbe check in •question was in tbe bands of tbe state and available as evidence, it is our view tbat its introduction was essential, and tbe failure on tbe part of tbe state to offer it was fatal to tbe conviction.
Reversed and remanded.