¶1 ON APPELLANT’S motion for rehearing.
¶2 In his motion for rehearing appellant contends that the indictment is fatally defective. We are unable to agree with this contention. It appears from the indictment, when considered in its entirety, that appellant is charged with having obtained a check signed by the White Drug Company, by W. U. White, in the sum of $50 and of the value of $50, by giving to the said White a check for $50 drawn by E. Ray Smith (the appellant) on the First National Bank of Lubbock. In short, the indictment alleges that appellant drew and delivered his own check in the sum of $50 to W. U. White in exchange for the White check in said sum, the averments being that at the time appellant drew the check and at the time when in the ordinary course of business it would have been presented to the bank for payment appellant did not have sufficient funds in the bank to pay the check and had no good reason to believe that said check, when presented to said bank for payment, would be paid. It is further averred that the check was in due course of businesse presented to the bank for payment and that payment thereof was refused by said bank for want of sufficient funds of the appellant. Again, the indictment embraces sufficient averments as to fraudulent representations; and, further, alleges that Mr. White was induced to deliver the check because of such representations. We have not undertaken to set out all of the allegations in the indictment.
¶3 Appellant insists that the order in which the testimony was set forth in the original opinion herein erroneously led us to the conclusion that the evidence is sufficient. He says in *111 his motion that if the testimony is considered in the “exact order in which it was given” a different conclusion should be reached. We deem it unnecessary to do more than quote from the testimony of W. U. White, the injured party. We start with a question propounded to the witness as follows: “What was said when he (appellant) first came into the drug store in regard to the check?” Mr. White answered: “Well, he wanted to cash a check for $50 and I suggested that he go to the bank and he says, ‘No, I have had a little difficulty with the bank and don’t care anything about going there,’ and that sounded all right to me and so in the transaction I gave him my check for $50. Well, the reason I gave him my check for $50 he told me he wanted to cash a check for $50 and after he told me he had some misunderstanding with the bank I said, ‘E. Ray, I don’t mind cashing your check. That is O. K. with me if you have the money,’ and he said, ‘You don’t think I would give you a check without the money’ and I said, ‘No, I don’t think so, but be sure what you are doing. I haven’t the $50 to spend or loan or anything else,’ and he said, ‘Give me your check for $50 and I will cash your check and you can deposit my check and by the time your’s gets back here everything will be all right.’ Yes, I asked him if his check was good at that time. He said that check — that money would be there to take care of that check. I gave him my check for $50 and he gave me his check for $50 and I was supposed to cash his check and he was supposed to cash my check and the fact that he was having difficulty with the bank here was the reason he didn’t cash his check at the bank. Certainly I believed his check was good. I would not have taken it if I thought it wasn’t. I deposited his check after I tried to get the cash on his check. No, I was not successful in doing so. Yes, sir, it was returned to me. I don’t remember whether the reason it was returned was for insufficient funds or not. I do not know whether it said insufficient funds or no funds. … At the time I had this conversation with him and at the time he gave me his check if he had told me his check was not good at that time I would not have cashed his check.”
¶4 As pointed out in the original opinion, the testimony was to the effect that the check delivered to Mr. White was not paid when presented because of insufficient funds. It was again presented for payment some few weeks later and payment refused because of no funds.
¶5 We think that the conclusion expressed in the original opin *112 ion to the effect that the evidence is sufficient to support the conviction was correct.
¶6 The motion for rehearing is overruled.
¶7 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.