The defendant was indicted under the provisions of section 476 of the Penal Code. The court in*69strueted the jury that they must acquit the defendant unless it was proven that T. A. Dowd, the name signed to the check in question, was a fictitious person. This proposition is not contested by the prosecution. The evidence failed to prove that fact, and the jury should, on that ground, have acquitted the defendant.

Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.

MeKinstry, J., dissented.