dissenting:
With all deference I am constrained to dissent from *943the opinion of the Court, in so far as that opinion bears upon the proof of the defendant’s guilty knowledge that the check in question was, in fact, forged at the time defendant uttered it. In all other respects I agree with the holding of the Court as set forth in the opinion.
Code, 61-4-5, provides, in part, that: “If any person * * * utter or attempt to employ as true such forged writing [other than those mentioned in Code, 61-4-1, and Code, 61-4-3], knowing it to be forged, he shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than two nor more than ten years.” Thus it may be seen that three elements enter into the crime of forging and uttering the paper writings embraced therein: (1) The writing must be, in fact, forged; (2) the accused must utter or attempt to employ as valid the forged writing; and (3) the accused must know it to be forged at the time the writing is uttered. State v. Viquesney, 103 W. Va. 392, 393, 137 S. E. 538.
From the evidence that the defendant at the time the check was uttered represented to Kelley, who knew the defendant’s face but not his name, that he was “Howard Ross”, that he falsely represented that he had husked corn for Herman Poling and that the check was for that work, and that Herman Poling was an attorney, it is reasoned in the opinion of the Court that the defendant had knowledge of the forged character of the check at the time he obtained the cash thereon. This, in my opinion, is a non sequitur, because the defendant may have made those representations because he thought- that the check was drawn on a bank in which Herman Poling, whose full name is “Herman J. Poling”, did not have an account. Of course, these are strong and suspicious circumstances, which would tend to indicate that the defendant knew that the check was forged at the time of its utterance, which the jury would be entitled to consider in the determination of whether defendant was guilty or innocent. The very passing or uttering of a check alleged to be forged is a strong circumstance to be considered as tend*944ing to show that the utterance of the check was made with intent to defraud. State v. Austin, 93 W. Va. 704, 715, 117 S. E. 607. Likewise in the same case at page 715 of the opinion, this Court held that the jury may consider, in determining the guilt of a defendant, who is charged with the uttering of a forged instrument, the fact that the defendant at the time the instrument was uttered, represented himself to be the person named as payee therein. But these are only circumstances to be considered, and do not of themselves, in my opinion, establish defendant’s guilt beyond a reasonable doubt. In this jurisdiction in every criminal case, the defendant’s guilt must be established beyond a reasonable doubt. State v. Scurlock, 99 W. Va. 629, pt. 1 syl., 130 S. E. 263; Niblack, Underhill’s Criminal Evidence, 4th ed., Section 51. “The general rule stated broadly, as laid down by the cases, is that the burden of proof and the obligation to convince the jury of the prisoner’s guilt beyond a reasonable doubt as to all facts and circumstances essential to the guilt of the accused, including the criminal intent, are upon the prosecution throughout the trial.” And this burden, as distinguished from the burden of evidence, the latter of which may during the course of the trial shift with frequency, never shifts. Id., Section 50.
In order to establish the defendant’s guilt beyond a reasonable doubt under the rule prevailing in this jurisdiction, it is necessary that the evidence be such as to establish the guilt of a defendant in a criminal prosecution by proof resulting in the actual exclusion of every reasonable hypothesis of innocence. 5 M. J., Criminal Procedure, Section 62, and cases cited under notes 13 and 14; State v. Mininni, 101 W. Va. 611, pt. 1 syl., 133 S. E. 320.
The representations which the defendant made to Kelley, though they are without explanation, under the rule in State v. Austin, supra, amount only to suspicious circumstances and did not establish beyond a reasonable doubt defendant’s guilty knowledge of the forged character of the check, which he uttered. And, therefore, the *945evidence thereof does not exclude the hypothesis that the representations may have been made because defendant, having doubt as to the worth of the check, may have thought them necessary in order to obtain the cash thereon. •
Again it must be said that this Court should not on evidence creating mere suspicion, no matter how strong, take away the protection which the well established rules governing criminal procedure in this State have through the course of years wrapped around every citizen accused of crime.
I am authorized to say that Judge Lovins concurs in this dissent.