The State's case was predicated on an alleged false entry made by appellant which passed to his credit the sum of $5000.00. It was appellant's defense that the entry was legitimate and authorized because he had drawn a draft on E. H. Edwards for said amount. Upon this issue the court instructed the jury as follows:
"If you believe from the evidence that on June 29th, 1927, the defendant drew a draft on E. H. Edwards for $5000.00 and deposited same in the First State Bank of Bellevue, Texas, to his own credit, and the defendant at that time believed, or had no reason to disbelieve, that said draft would be paid, or if you have a reasonable doubt thereof, then you will acquit the defendant."
Although certain written objections to the charge were made none was urged to the paragraph just quoted; however a special charge was requested and refused which would have told the jury if they found that appellant drew a draft on E. H. Edwards for $5000.00 and attached thereto some oil leases, and that said draft was deposited in the bank to appellant's credit, they should acquit. Appellant predicates his motion for rehearing largely on the proposition that the court committed error in giving the charge quoted and in refusing the special charge requested. So far as criticism of the charge given is concerned it seems sufficient to say that no objection thereto having been urged as required by Art. 658 and 666 Cow. C. P., appellant is in no position now to complain. (See authorities under Note 60, Art. 666, Vernon's Cr. Statutes, Vol. 2.) The requested charge is in conflict with that given in that the requested charge would have authorized an acquittal if appellant drew the draft referred to although it may have been a sham intended to furnish an ostensible basis for the entry which reflected no real transaction. Although it was the state's claim that no such draft was ever drawn on Edwards such contention would in no way estop it from asserting that if such a draft was drawn it reflected a sham transaction, which did not relieve the entry of falsity.
In the motion for rehearing our attention is directed to the case of United States v. Warn, 295 Federal Rep. 328. The announcement therein appears to be against appellant rather than in his favor and expressions are used which are in harmony with those found in Coffin v. United States, 162 U.S. 664, referred to in our original opinion. The opinion in Warn's case might not be binding upon *Page 167 the Supreme Court of the United States, nor upon this court, but to our minds the logic is unanswerable. We quote:
"While one cannot be charged with making a false entry, where the transaction, though unauthorized or unlawful or in some respects fraudulent, is correctly entered or reported, an entry or report, made by one knowing the facts, of a note or other instrument as real or genuine, which in truth is forged or spurious, or a mere sham, would fall within the denunciation of the statute. Here the gist of the charge is that the note, entered as alleged, was a 'mere dummy,' etc., and the whole question of the sufficiency of the charge turns upon the meaning to be attached to the word 'dummy.' However inelegant the term, it has undoubtedly come into common use. We speak and hear of 'dummy' directors of a corporation, 'dummy' entrymen in connection with public land frauds, 'dummy' contracts, etc. In its general significance it is perhaps more comprehensive and less distinctive in meaning than other words which might be named as its synonyms. 'Sham' is possibly the closest equivalent. It implies a make-believe, a pretended, a feigned something — an imitation, a counterfeit in a general sense, but not necessarily fictitious or forged. If, as I take theterm 'dummy here to mean, the Streeter note was a mere sham, amere make-believe note, and the defendant knew such to be itscharacter, he could not rightfully carry it as a real asset ofthe bank, and entries purporting to exhibit it as such would befalse."
The italicising of the last sentence is ours. It appears particularly applicable to the instant case. If the Edwards' draft was a sham, and appellant knew it he had no right to pass the amount of it to his credit, and an entry made for such purpose would be false.
Appellant complains that in considering his bill of exception number four we took no notice of an objection urged to admission of a certified copy of the bank's charter on the ground that "the authenticity of the execution of the Charter has not been shown, and no proper predicate has been laid for the introduction of said charter."
Art. 1313, R. C. S. (1925) after providing under what circumstances the Secretary of State shall receive, file and record charters, further reads:
"The charter shall thereupon be filed in the office of the Secretary of State, who shall record the same at length in a book to be kept for that purpose, and retain the original on file in his office. A copy of the charter, or of the record thereof, certified under the *Page 168 great seal of the State, shall be evidence of the creation ofthe corporation."
There seems to have been exact compliance with the statute just quoted, and the objection urged is without merit.
On account of appellant's insistence that the evidence should be held insufficient to support the conviction we have again examined the facts. We think this court would be unauthorized to hold that the evidence did not support the finding of the jury.
The motion for rehearing is overruled.
Overruled.