The offense is making a false entry in a book of a state bank; the punishment confinement in the penitentiary for six years.
Appellant was cashier of the First State Bank of Bellevue, Texas. On June 29th, 1927, he prepared a deposit slip showing that he had deposited the sum of $5,000 in said bank. On the same date his special account was credited with said sum. Thereafter appellant withdrew approximately $3,000 from the bank, such amount being charged to his special account. A bank examiner testified that appellant told him that he had drawn a draft on one E. H. Edwards in the sum of $5,000 with certain oil leases attached and sent same to a Fort Worth bank, and that the credit of $5,000 shown in his special account represented the amount of the draft. Appellant also stated to the examiner, according to the state's testimony, that the draft was returned unpaid. The testimony of the state's witnesses tended to show that appellant had not drawn the draft and that there was no basis for the entry in question. An employee of the Fort Worth bank named by appellant testified that drafts drawn on his bank passed through his hands, and that the draft described by appellant had not been received by him. Several days after the bank examiner found the credit in question in appellant's account, said account was charged with the sum of $5,000. However, the money theretofore withdrawn by appellant was not replaced. Appellant was unable to produce the draft claimed by him to have been returned unpaid. It was customary to enter drafts in transit in the remittance book. No record of the draft in question was made therein.
Bill of exception Number 1 discloses that the state introduced in evidence a sheet of the individual ledger containing appellant's special account. Appellant objected to the introduction of the ledger sheet on many grounds, chief of which was that the individual ledger had not been proven to be the bank's book. The court qualified *Page 163 the bill, but appellant having excepted, the qualification cannot be considered. We note from the bill that the bank examiner testified that he had seen the individual ledger referred to in First State Bank of Bellevue, and that said book had been delivered to him by an employee of said bank. He further testified that he called said book the individual ledger. We note that the witness in question was not the only state's witness testifying to the nature of said book. The bookkeeper of the bank testified that said book belonged to the First State Bank of Bellevue and was in use by said bank in June, 1927. He referred to the book as the individual ledger and described the special account of appellant which was contained therein. We are constrained to hold that the evidence is sufficient to justify the conclusion that the book in question was the individual ledger of First State Bank of Bellevue.
As shown by bill of exception Number 3, a state's witness testified on cross-examination that there was a direct connection between the alleged false entry and a three thousand dollar shortage he had found in the bank. Appellant did not request the court to exclude the answer of the witness. On redirect examination the witness testified that there was a shortage of three thousand dollars in the bank. Appellant objected to the question and answer on the ground that it was immaterial and irrelevant. The objection is not supported and appears only as a ground of objection. Hence as against the objection made the bill is insufficient to manifest reversible error. It may be added that as bearing on appellant's intent to defraud the bank the testimony complained of may have been relevant and material. It was charged in the indictment that the entry was made with the purpose and intent of defrauding the bank.
Bill of exception Number 4 is concerned with the action of the court in permitting the state to introduce in evidence a certified copy of the charter of the bank, in the absence of said copy having been filed among the papers of the case, in compliance with the provisions of Article 3726 Revised Civil Statutes 1925. While said article provides that instruments of writing which are permitted or required by law to be recorded in the office of the county clerk shall be filed among the papers of a suit at least three days before the commencement of the trial and notice given thereof to the opposite party or his attorney of record, we note that Article 381 Revised Civil Statutes 1925 only requires that a certified copy of a bank charter be filed in the office of the county clerk of the county in which the corporation may be located. Article 3722 Rawle C. S. 1925 provides, *Page 164 among other things, that the banking commissioner shall furnish to any person applying for the same a copy of any paper, document or record in his office with a certificate under seal certifying to any fact contained in said paper, document or record. It is further provided in said article that said paper, document or record shall be received in evidence in all cases in which the originals would be evidence. A bank charter not being required to be recorded in the office of the county clerk, its use in evidence is not controlled by the provisions of Article 3726, supra. On the contrary, the provisions of Article 3722, supra, control.
While a witness for the state was testifying on cross-examination he was asked by appellant if he didn't ship some liquor to Seebold Hotel in Brownsville. It is not shown by the bill of exception (Number 5) that the witness was under complaint or that he had ever been indicted on a charge of transporting or selling intoxicating liquor. Hence the action of the court in refusing appellant the right to require the witness to answer the question was not error. Mr. Branch, in his Annotated Penal Code, Section 168, lays down the rule as follows:
"Proof of mere accusations against, or evidence of particular acts of misconduct is not admissible to affect the credibility of a witness. Defendant or any other witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or with a misdemeanor imputing moral turpitude."
It appears from bill of exception Number 9 that after the private prosecutor had read the first part of the court's charge relating to the admonition to the jury that they should not consider appellant's failure to testify or discuss or allude to it, the court stopped the reading of said charge and requested that private prosecutor proceed no further. Whereupon appellant's counsel interposed an objection to the acts of the private prosecutor for the reason that he had alluded in argument to appellant's failure to testify and further an objection to the action of the court in stopping counsel from reading said charge. The court instructed the jury not to consider the acts of private prosecutor in reading from said charge or the acts of the court in stopping him. In Goldsberry v. State, 242 S.W. 221, we held that the reading of the charge did not constitute a violation of the statute.
The court charged the jury, in substance, that causing another to make an entry is equivalent to making the entry in person. Under the facts, the giving of the charge does not constitute error. Article *Page 165 68 P. C. declares in substance that one is a principal who employs a person who cannot be punished to commit an offense. The bookkeeper of the bank testified that he did not know whether he or appellant made the entry in question. It was undisputed that appellant prepared the deposit slip from which the entry was made. There is nothing to indicate that the bookkeeper was guilty of any violation of the law in making the entry on the individual ledger. If appellant did not make the entry on the individual ledger in person he procured an innocent agent to make said entry. In such event, appellant was a principal. The court merely submitted the terms of the statute.
The court instructed the jury that appellant could not be convicted if he drew a draft on E. H. Edwards for $5,000, and deposited same in the First State Bank of Bellevue, Texas, to his own credit, and believed at the time he drew said draft that it would be paid. Appellant requested the court to charge the jury that if he drew the draft in question and deposited same in the bank they would acquit him. The court correctly refused to give the requested instruction. If the placing of the draft in the bank was a mere pretext to enable the false entry to be made, appellant was in no position to contend that the entry was supported by an actual transaction. If appellant had no reason to believe that the draft would be paid, he resorted to a false pretext to enable him to make the entry. In Coffin v. United States, 162 U.S. 664, the Supreme Court of the United States was concerned with a similar question. In that case the appellant had placed fraudulent notes in the bank and received credit therefor. While recognizing the rule to be that the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place and is entered exactly as it occurred, the court expressed the view that if the notes in question had been originally given to the bank as a mere pretext to enable the false entry to be made no actual transaction supported the entry.
Other bills of exception found in the record have not been discussed. We have carefully examined all of appellant's contentions and fail to find reversible error.
The judgment is affirmed.
Affirmed.
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. *Page 166
ON MOTION FOR REHEARING.