The opinion
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ON MOTION FOR REHEARING.
LATTIMORE, Judge.
— The gist of this case is, — did appellant while cashier of the Altoga State Bank, and at a time when he did not have $500.00 to his credit in said bank, and did not have that amount owing to him by said bank, — give a check for $500.00 on said bank and cause it to be paid out of the funds of the bank?
That he was such cashier at the time, is clear. That he did not have said sum to his credit on October 1, 1926, was proved; Mr. Holderness, bank examiner, testified, without objection, that on October 16, 1926, he examined the Altoga State Bank and that appellant’s account was overdrawn on each date from September 14, 1926, to October 16th, —the date of examination. That appellant gave a check for $500.00 to Higginboham-Bailey-Logan Company of Dallas (herein referred to as H. B. L. Co.) on October 1, 1926, drawn on said bank, which was paid out of the funds of said bank, was established and was not denied further than a plea of not guilty denies all material allegations in an indictment. Mr. Holderness swore that on November 22nd, after the bank burned, he went up there to see about it and appellant gave him a $500.00 check drawn in favor of H. B. L. Co. on October 1, 1926, which was endorsed by the H. B. L. Co. to the Republic National Bank of Dallas, and by that bank to any other bank or trust company, — appellant telling Mr. Holderness at the time that said check in question belonged to the bank and was being carried as cash. Appellant did not testify or put on the stand any witness herein.
Appellant’s main contentions, based on three bills of exception, were that Duke, head of the accounting department of H. B. L. Co.; Eagle, manager of the transit department of the Federal Reserve Bank at Dallas, and Bassett, manager of the transit department of the Republic National Bank of Dallas, were each allowed to testify to certain records in their offices not made by them, not seen by them until after they were made, the correctness of which they could not know by personal contact, and whose correctness would be better attested by the records themselves. As solving these questions we note that in each instance as part of the predicate for the introduction of this testimony, the witness said that he was the head of his department, that the record testified to was a part of the permanent records of said department, was correctly kept, and that the staff of emploj'es in the office ranged from fifteen to twenty in H. B. L. Co. to eighty or ninety in the Federal Reserve Bank.
The check in question was, without objection, put in evidence, and bore appelalnt’s signature in his own handwriting, and was shown to be drawn on said Altoga State Bank, dated, and endorsed as above set out, and payable to H. B. L. Co.
We think these contentions of appellant referred to were properly disposed of in the original opinion, and in addition to the authorities
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there mentioned we cite Underhill’s Crim. Ev., Sec. 98; Busby v. State, 51 Texas Crim. Rep., 289 , 103 S. W., 638 ; Davis v. State, 61 Texas Crim. Rep., 611 , 136 S. W., 45 ; Moore v. State, 87 Texas Crim. Rep., 77, 219 . S. W., 1097.
We are still of opinion that in regard to the deed of trust offered by the defense, — there was no hurtful error in the court’s verbal limitation of the purpose for which same might be considered by the jury.
We are also of opinion that the fact that appellant wrongfully placed to his own credit money borrowed for the bank and upon the bank’s collateral, and which money belonged to the bank, could not be taken advantage of by him in asserting that the court erred in telling the jury in the charge that credits to appellant’s account at such time to be available to him to meet said check, must be credits of his own money.
The motion for rehearing will be overruled.
Overruled.