On State's Motion for Rehearing. The State has filed a motion for rehearing in which the evidence of one of the bankers, introduced by the State, is relied upon. It is then stated that the two outstanding checks in the total sum of $8,263.69 exceed the largest balance found in the bank, which was $4,789.31. Such figures may be reflected by the testimony of one of the bankers, who testified to his conclusion. Another witness from the bank, however, in giving detailed deposits, seems to conflict with this materially.
It was the contention of the defendant that he had every reason to believe, under all of the circumstances, from the way he had done business with the bank in *Page 541 the past, that the check would be paid in the due course of business. We have made a careful study of the detailed statement given of his account by the second witness from the bank, from which it appears that appellant had been doing quite an extensive business in buying and selling cattle. In selling, he evidently mailed checks to the bank for deposit, and the checks which he gave had been charged to his account, whether promptly or not the evidence does not reflect. His contention on this point should have been sustained under the evidence of the case.
The only question in the case is whether or not the balance in the bank was sufficient at the time the check was given to take care of it and all outstanding checks. The State's evidence as introduced is somewhat conflicting on this subject and is insufficient to support the allegation. The State had the burden of doing so. The State seems to have lost sight of the importance of the date August 21st, being the date the check was given, and emphasizes the date of its presentation, August 25th. If subsequent checks had depleted the account, they should be shown to have been given prior to the one upon which the prosecution is based.
The original opinion correctly disposes of the case. The State's motion for rehearing is overruled. *Page 550