Full opinion text
DAVIDSON, Judge. This is a conviction for the giving of a worthless check, under, art. -567b, Vernon’s Ann.P.C., with punishment assessed at three years’ confinement in the penitentiary and a fine of $1. The sufficiency, of the indictment was attacked by motion for .arrest of judgment. The indictment charged, in effect, that appellant obtained ■ $80.07 in money and paid a hotel bill of $69.93, by the giving of a worthless check to the hotel company for the sum of $150. ’’ The indictment also charged that the check was given with intent to defraud and that at the time given, and'when in the ordinary course of .business said check would te preserítéd for payment, the appellant'Sid not have sufficient funds at the bank with which to p'ay it., * There is an entire absénce óf any allegation therein that the check was given by appellant with knowledge that he.jiid not have funds in or on deposit with the bank with which to, pay that and all other outstanding checks.' It ishecaus’e of the absence of an allegation of, knowledge that appellant attacks the sufficiency of the indictment. . The statute, .art. 567b, Sec. 1, Vernon’s Ann.P.C., expressly incorporates, in. the use of the following words, knowledge on the part of the accused of the worthlessness of the check when he gives it: “* * * knowing at the time of suchr making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such’bank, pe'rso'n, firm or corporation, • for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.”' Being" an essential element' of the offense charged, ’ such knowledge on the part of the accused-must be alleged in the indictment. - See Willson’s Criminal Forms, Sixth Edition; Pallage v. State, 158 Tex.Cr.R. 41, 253 S.W.2d 47 ; Glover v. State, 158 Tex.Cr.R. 428, 256 S.W.2d 107; Porter v. State, 158 Tex.Cr.R. 237, 254 S.W.2d 516. The. state seeks to sustain the sufficiency of the indictment because it is alleged therein that the check was given with intent to defraud. The. state contends that this amounts to an allegation of a lack of knowledge on the part of the accused as to the worthlessness of the check. To accept such contention would be to authorize an essential element of a crime to be alleged in the indictment indirectly and by intendment and not directly. Moreover, if the allegation of an intent is to be looked to, an allegation would necessarily be required that the check was, in fact, presented to the bank and payment was refused. There' is no such allegation in the indictment. ' For the reason pointed out, the judgment is reversed and the prosecution ordered dismissed.