This case was affirmed at the Tyler Term, 1905, motion for rehearing was filed, and the case was carried to the Dallas Term, 1906, where the motion was overruled. Subsequent to the overruling of appellant's motion, the State filed a motion requesting this court to recall the transcript from the Tyler Branch, where it had been forwarded for the purpose of issuing the mandate, and to correct the judgment of the lower court. This motion is in this form: "Now comes the State, by the Assistant Attorney-General, and would show the court, that the judgment in this cause was affirmed at Tyler, and the appellant's motion for rehearing was overruled at the Dallas Term; that since which time it has been discovered, and this court's attention is now called to the fact that the transcript does not contain a complete judgment against appellant, though the sentence is contained in the *Page 361 transcript. Wherefore, the State prays that the court order the transcript and all papers transferred from Tyler, to the Austin Branch of the court, to the end that this court may determine its jurisdiction of this appeal, and whether or not the judgment should be reformed and affirmed, or whatever action this court deems necessary."
On said motion the transcript was recalled and the mandate ordered to be withheld pending the determination of the State's motion.
It appears from the transcript that the judgment of the District Court is in the following form:
"The State of Texas
"No. 4283 vs. "William McCorquodale.
"March 27, 1905.
"This day this cause was called for trial, and the State appeared by her district attorney, and the defendant, William McCorquodale, appeared in person, his counsel also being present, and the said defendant, William McCorquodale, having been duly arraigned, and both parties announced ready for trial, and the defendant, William McCorquodale, in open court pleaded not guilty to the charge contained in the indictment herein; thereupon a jury, to wit: J.H. White and eleven others, were duly selected, empaneled and sworn, who, having heard the indictment read, and the defendant's plea of not guilty thereto, and having heard the evidence submitted, and having been duly charged by the court, retired in charge of the proper officer to consider of their verdict, and afterwards, on April 1st, were brought into open court by the proper officer, the defendant and his counsel being present, and in due form of law returned into open court, the following verdict:
"`We, the jury, find the defendant guilty of murder in the first degree, and assess his punishment at confinement in the State Penitentiary for life. J.H. White, Foreman.'"
The judgment is in the ordinary form and is complete so far as it goes, except the 9th and 10th requirements, under article 831 Code Criminal Procedure are omitted. Subdivision 9 provides: "In the case of a conviction that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; or, in case of acquittal, that the defendant be discharged. 10. That the defendant be punished as has been determined by the jury in cases where they have the right to determine the amount or the duration and the place of punishment, in accordance with the nature and terms of the punishment prescribed in the verdict."
The object of the motion on the part of the State it will be seen is to have this court reform and correct the judgment. Appellant contests this on two grounds: First, that this court has *Page 362 lost jurisdiction of the case: the motion for rehearing on the part of the defendant having been overruled, and the State's motion not being in the nature of a motion for rehearing. Second, that it is not competent, even if this court had jurisdiction of the case, to reform and correct the judgment of the lower court in the respects pointed out.
With respect to the first proposition, we hold, that this court has plenary power over its judgments during the term, and even after the term, and although a motion for rehearing may have been overruled, in order to support its jurisdiction, and to ascertain such matters of facts as may be necessary in order to exercise its jurisdiction. Bailey v. State, 11 Texas Crim. App., 140; Craddock v. State, 15 Texas Crim. App., 641. In Bailey's case, supra, motion for rehearing was filed after the expiration of the fifteen days allowed by law (art. 1030 Rev. Stat.) for the filing of such motions. The court there, in passing on the question, say: "The powers of this court are not so restricted as to prevent the court from correcting clerical errors, mistakes or defects of form, or making additions of matters which may be necessary to carry out the judgment of the court. Nor does the statute place such a restraint upon the powers of this court as to prevent the court from declaring null and void the judgment rendered in a case not legally before this court." In support of this proposition, the court cites Burr v. Lewis, 6 Tex. 76. In Craddock's case, supra, some misdemeanor cases had been dismissed on the alleged ground that no sufficient recognizances had been filed in said cases. It there appeared that the records in said cases in the lower court had been lost or destroyed, and that the State, without notice to appellant, substituted some of said lost papers, and among others, substituted the recognizances, which substitutions showed they were defective recognizances. These substituted recognizances were brought to this court, and the appeals dismissed thereon. Subsequently, on the affidavit of appellant, the matter of the substitution of these recognizances was brought to the court's attention, and that the same were substituted without notice; and it was further shown that the recognizances really executed in said cases were proper legal recognizances; and that the attempted substitution was a fraud upon the rights of appellant. The court, Judge Winkler rendering the opinion, makes reference to the powers of this court to ascertain and maintain its jurisdiction by affidavit or otherwise, as provided by article 5 section 6 of the Constitution. The court there also refers to Burr v. Lewis, and Chambers v. Hodges, 3 Tex. 517. The court quotes approvingly from the latter case, as follows: "The principle that the application for the rehearing upon the merits can not be heard after the term, does not apply where the judgment is sought to be set aside, as in this case, upon the ground that the judgment was not a legal judgment, when rendered for *Page 363 want of jurisdiction. If the judgment when rendered was void, it could not conclude the right of any party. But if the case was not legally before us at the last term, when the judgment was rendered, it is immaterial at what term the application was made, for if the judgment was a nullity, it may be so declared upon a motion made at a subsequent term." The court in that case, though after the term, entertained jurisdiction and recalled the mandates, and authorized the cases to be set down at the next ensuing term.
From these cases it will be seen that this court has heretofore fully recognized its power to inquire into and maintain its jurisdiction, and will take all proper steps to determine and enforce that jurisdiction. We apprehend, if this was an omission of something in the judgment, as the wrong number of years which may have been adjudicated against defendant, to his injury, there could be no question but that the court would entertain the jurisdiction to recall the mandate, and either correct the judgment here, or if it was found that this could not be done, to send the case before the proper tribunal, for the proper entry or correction. We do not believe that there can be any question as to the authority of this court under the circumstances shown in this case, to entertain the State's motion, and order the clerk to withhold the issuance of the mandate and return all of the papers, and have the same reentered on the docket, for such proceedings as may be proper.
The second proposition relates to the power of this court to correct and reform the judgment, by adding thereto, the omitted clauses. It appears to be conceded by the appellant that the lower court might correct and reform this judgment by adding thereto the omitted clauses, but that this court has no power to do so; that all it can do is to reverse and remand the case, because there is no final judgment in the case, and that the lower court might reform and correct the same, after it had been so remanded. That is, we understand it to be agreed, under the authorities, that if there had been an attempt on the part of the clerk below to insert the omitted clauses in the judgment, but these had been erroneously inserted, as to the offense or as to the number of years appellant was to be confined, that this court might correct the same under article 904 Code Criminal Procedure, which among other things, authorizes this court to "reform and correct the judgment, as the law and the nature of the case may require." The contention being that "reform and correct" appertains to something erroneously done, but does not refer to an entire omission to do a thing. Small v. State, 38 S.W. Rep., 798; Bullard v. State, 50 S.W. Rep., 348; Burks v. State, 55 S.W. Rep., 824; Turner v. State, 44 Tex.Crim. Rep..
We do not agree to this narrow construction of said article. In Small's case, supra, the question of the amendment of the sentence under said article was before this court, and it was there held by *Page 364 a majority of the court (Judge Davidson, dissenting) that the sentence of the prisoner in a felony case was more than a mere formal matter; that appellant was required to be present, and the sentence authorized by law passed on him; and that it would not be presumed that the record, being the final judgment of the court, spoke an untruth; and that the case should be reversed in order that the prisoner might be resentenced, for the offense of which he had been convicted. Reaching the conclusion it did, the case of Peterson v. State, 25 Texas Crim. App., 70, and Ex parte Strey, 28 S.W. Rep., 811, were in effect overruled. This case appears to have been followed by Barfield v. State, 41 S.W. Rep., 610; Womble v. State, 43 S.W. Rep., 114; Longoria v. State, 44 S.W. Rep., 1089. In Longoria's case, the exact question presented here was before the court. The power to reform in said case does not appear to have been called to the attention of the court. The case was simply dismissed because it did not contain a final judgment. In Bullard's case, supra, appellant was convicted of the theft of a horse, and his punishment assessed at seven years in the penitentiary; the judgment was entered accordingly; in the sentence (which was embraced in the record and sent to this court) his term of punishment was made to begin at the termination of the judgment and sentence in another case against him. It appeared to this court that there was no testimony authorizing the cumulation of his sentence based on another conviction. Under the authority of article 904, the judgment of the lower court was corrected and his sentence made to commence at once. That case was differentiated from Small v. State, supra.
In Burk's case, 55 S.W. Rep., 824, appellant was indicted for passing as true a forged instrument in writing. The verdict of the jury found appellant guilty as charged in the indictment and assessed his punishment at confinement in the penitentiary for a term of two years. The judgment of the court contained the following recital: "It is, therefore, considered and adjudged by the court that the defendant Ben Burks is guilty of the offense of forgery as found by the jury, and that he be punished as has been determined by the jury by confinement in the penitentiary for a term of two years." Here, inasmuch as the indictment charged appellant with uttering a forged instrument, he could not be convicted of forgery, and the judgment finding him guilty of that offense was reformed and corrected so as to make it correspond with the indictment; that is, he was adjudged guilty of uttering a forged instrument. This was on the ground that it was a clerical mistake, and that there was enough in the record to make the correction. From that decision the writer dissented, holding with the Small case, supra.
In Turner's case, supra, the question again came before this court on motion for rehearing. It was there held (all of the judges *Page 365 present and concurring) that the judgment could be reformed in accordance with the holding of this court in Burks and Bullard cases, supra. It will be seen from these latter cases that the former views of this court, as announced in Small's case, and those following it, have been overruled, and this court has returned to the former rule on the subject. McDonald v. State, 14 Texas Crim. App., 505; Reyna v. State, 26 Texas Crim. App., 666; O'Bryan v. State, 27 Texas Crim. App., 339.
However, the contention is, that none of our decisions go to the extent, under the authority of this court, to reform and correct the judgment, and to enter some omitted clauses as are left off from this judgment. Indeed, it is said that Longoria v. State, is direct authority against this view. Longoria's case followed Small's case, and was rendered before the overruling of that line of cases. While the decision is exactly in point, the question of the power of the court to reform and correct the judgment was not brought before the court.
It will be seen from an inspection of the record, that the sentence of the lower court, which is the final act or judgment of the court, is in proper form. Article 832 Code Criminal Procedure, and authorities cited thereunder in White's Ann. Code Criminal Procedure. This, as has been held, is the final judgment without which an appeal will not be entertained. It will be readily conceded that the lower court, under article 837 Code Criminal Procedure could complete the entry of this judgment. But it is insisted that this court is powerless to make the correction, and the case should be sent back in order that it be corrected in the court below. We have exactly the same data here for the correction of said judgment that the court a quo would have, were it sent there. It occurs to us, that the language used in our statute, "reform and correct" has more force than if the statute contained the power merely to "correct." Evidently the Legislature used the word "reform" in addition to that of "correct?" for some purpose, and it has a larger signification. "Reform" means to correct; to make anew; to rectify. Rapalje Law Dic., p. 1083. Here we have all of the foundation of the judgment, including the verdict of the jury, which is the basic rock on which the judgment is formulated. We have following this, the final judgment of the court, which is the sentence. This itself adjudicates the guilt of appellant and sentences him, in accordance with the verdict and judgment. From this data, certainly we can do that which the court a quo in due order should have done. We accordingly hold that the judgment of the court below should be reformed, and corrected, so as to make it read, in connection with the judgment as entered, and following the verdict, as follows, to wit:
"It is therefore considered, ordered and adjudged by the court that the defendant, William McCorquodale, is guilty of the offense of murder in the first degree, as found by the jury, and that he, *Page 366 the said William McCorquodale, be punished as has been determined by the jury by imprisonment for life in the penitentiary; and it is further ordered, adjudged and decreed by the court that the State of Texas do have and recover of and from the defendant, William McCorquodale, all costs of this prosecution, for which execution may issue; and that the said defendant is now remanded to jail to remain in custody to await the further order of the court."
The State's motion to reform is accordingly granted; the judgment is reformed and corrected, as above indicated, and as reformed and corrected, the judgment is affirmed in accordance with the previous opinion of this court.
Reformed and affirmed.
[Dismissed for want of jurisdiction in U.S. Supreme Court, December, 1908. — Reporter.]