Meadors v. State , 97 Tex. Crim. 93 ( 1924 )

At a former day of this term the appeal was dismissed because the record showed no sentence. A supplemental transcript has been filed which includes what purports to be a sentence, and we are now asked to consider the case on its merits. In our opinion the record is not aided in any way by bringing forward the purported sentence.

The indictment contained two counts, one alleging the sale of intoxicating liquor, the other possession thereof for the purpose of sale, both counts were submitted to the jury, and a general verdict of guilty was returned. There was no formal request for an election by the State, but appellant objected to the submission of the second count. It is doubtful if it would have been proper under the facts to have required the State to elect upon which count it would seek a conviction, because the evidence shows only a single transaction. In developing the alleged sale of the liquor the possession thereof for that purpose was of necessity shown. However there could be a conviction of only one offense, and the court having failed to instruct the jury to state under which count, if any, they convicted, should have applied the judgment to one or the other of the counts, the evidence supporting both; instead of this the judgment condemns appellant to be "guilty of the offense charged in the indictment."

The chief difficulty we encounter is in the sentence (?). After formal recitals it reads:

"It is the order of the Court, that the defendant, George Meadors, who has been adjudged to be guilty of violating the prohibition laws of the State of Texas and whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for one year, be delivered by the sheriff of Robertson County, Texas, immediately to the Superintendent of the Penitentiaries of the State of Texas, or other person legally authorized to receive such convicts, and the said George Meadors shall be confined in said Penitentiaries for one years, in accordance with the provisions of the law governing the Penitentiaries of said State, and the said George Meadors is remanded to jail until said sheriff can obey the directions of this sentence."

It will be seen that appellant is sentenced to the penitentiary for one year for "violating the prohibition laws of the State of Texas." There is no such offense known to our laws, and the purported sentence is in fact no sentence at all. This court is given authority under certain circumstances to reform judgments and even sentences, (See Art. 932 C.C.P.; Pearson v. State,95 Tex. Crim. 257 S.W. Rep., 895; Robinson v. State,58 Tex. Crim. 550, 126 S.W. Rep., 276), but we know of no right conferred upon us under the guise of reforming a sentence to make an order which would, in effect, be pronouncing the sentence itself.

Believing no jurisdiction to have been conferred upon this court by what now appears in the record as a sentence, and that under the circumstances we have no authority to reform it, the motion to reinstate the appeal is overruled.

Overruled.