In his able and courteous motion for rehearing appellant insists that we were wrong in declining to reverse this case because of the fact that the trial court in stating the penalty to the jury gave the appellant, as the court below evidently thought, the benefit of a new statute, by the terms of which the minimum penalty for the offense charged had been reducd from five years to two. It is true that at the time the court gave this charge appellant objected and *Page 119 excepted to the giving of same upon the ground that the law changing the penalty was unconstitutional. We have followed the interesting discussion in appellant's motion of the notations of what is now our article 666, C. C. P., but are constrained to hold that we are bound by the proposition contained in said article of the statute that a case shall not be reversed even for an error in the charge, unless such error be one calculated to injure the rights of the defendant. Whether the ameneded statute changing the penalty be constitutional or not, — it still seems impossible to conceive that an instruction to the jury to fix the penalty in case of guilt at not more than ten nor less than two years, could have hurt appellant, conceding for the argument that the trial court should have instructed the jury to fix the penalty in case of a verdict of guilty at not more than ten nor less than five years. The verdict fixed by the jury was within either statute, — the old or the new. We think Judge Hawkins' discussion of the matter in Thompson v. State, 91 Tex.Crim. Rep., 237 S.W. 926, presents a correct view. As said by Judge Davidson in Ramirez v. State,43 Tex. Crim. 455, 66 S.W. 1101, in which the penalty was incorrectly stated, but the lowest penalty was fixed: Under the decisions of this court construing article 723, (now article 666) Code of Criminal Procedure, this error was not calculated to injure appellant's rights.
We have again examined bill of exception No. 12 presenting objection to the testimony of Messrs. Mauritz and Dees. The bill states that the appellant objected to the testimony of these gentlemen as to the total individual deposits shown by the individual deposit ledger of the bank in question, on the ground that the individual ledger deposit accounts themselves were the best evidence of the amounts of such deposits, and that the testimony of said witnesses as to the total of such several balances was merely the conclusion of the witnesses. The bill states no facts supporting or making clear the validity of such objection. For aught we know from the bill, the witnesses may have had the individual deposit ledger before them, and may have been stating their contents from a then examination. It is necessary for a bill of exception to state facts from which this court may know that the objections taken are true and supported.
It is also insisted that the court below erred in declining to grant a continuance. We would not be inclined to hold that one representing a person accused of crime, might depend upon the court quashing the indictment, and offer this as a reason why he had not procured subpoenaes for absent witnesses, or taken active steps to inform himself about matters material to his defense. As far as we are informed by the record, no effort was made by appellant in any way to show by an examination of the books of the bank during the trial, that the individual deposit ledger whose contents were offered in evidence, did not properly reflect *Page 120 the facts. No effort seems to have been made to cause the books to be produced by a subpoena duces tecum, if indeed the books were not present. The testimony for the state to the effect that appellant admitted that he had falsely kept the individual deposit ledger so that he might thereby defraud the bank, seems not to have been disputed by any testimony. We see no error in the action of the court in declining to grant the continuance, which was asked in order that appellant might have time to examine the books of the bank. We do not think the court abused his discretion in the matter.
The charge against appellant was making a false entry, which consisted in the entry of an aggregate sum in the individual deposit ledger purporting to show the amount of the assets of the bank as of a certain date. We do not see just how the court below could be deemed to have committed an error following the admission of testimony of the false entry showing a wrong total of assets on that day, — in permitting it to be shown that on a particular day about this time appellant received a deposit of $650, which was entered on said ledger as a deposit of $65.
We believe the case correctly decided, and the motion for rehearing will be overruled.
Overruled.