We think the indictment is a. good one, as it alleges every element of the offense of swindling, and sets out in haec verba the instrument in writing by means of which it is alleged the offense was accomplished.
Among other instructions given the jury was the following, given at defendant’s request: “Unless the proof satisfies you beyond a fair and reasonable doubt that the signatures to the. document in evidence before you were there at the time of its presentation to the county judge, and that defendant’s false and fraudulent declaration that the)'- were genuine signatures induced the issuance of the draft in question, then the defendant is entitled to be acquitted.” This instruction was applicable ,to the charge in the indictment and to the facts in evidence, and is correct in principle. But, in our opinion, the verdict is contrary to said instruction, and unwarranted by the evidence. It appears from the testimony of Lewis, the county judge, that he had no definite recollection about said signatures, as to whether or not they were on the document when it was presented to him. He states that it was as probable that they were not, as that they were on said paper at said time. He states further that he does not remember any statement or declaration made to him by defendant in regard to said signatures or said document.
Because, in our opinion, the verdict is against the law and unsupported by the evidence, the judgment is reversed and the cause remanded.
Reversed and reinanded.