Appellant, in his motion for rehearing, vigorously contends that we erred in our original opinion by reforming and affirming the judgment and sentence of the trial court. He seems to base his contention on the fact that there is no statement of facts accompanying the transcript and therefore this Court is without evidence to warrant a reformation of the judgment from forgery to the offense of attempting to pass a forged instrument. The transcript contains a copy of the indictment charging appellant with the offense of attempting to knowingly pass as true a forged instrument with intent to defraud. *Page 280 The court, in his charge to the jury, submitted the case upon said charge in the indictment. The jury found appellant guilty of attempting to knowingly pass as true a forged instrument with intent to defraud, and assessed his punishment at confinement in the State Penitentiary for a term of two years. The judgment and sentence, however, recite that he is guilty of forgery, etc.
It occurs to us that this is a clerical error and one that this Court can reform by reference to the transcript without a statement of the facts. Article 847, C. C. P., authorizes this Court to reform and correct a judgment as the law and nature of the case may require. This procedure has been followed by this Court for more than half a century.
In the case of Thomas v. State, 31 Tex.Crim. Rep., the appellant was found guilty by a jury of receiving and concealing stolen property and his punishment was assessed at confinement in the State Penitentiary for a term of two years. Upon said verdict, judgment was rendered adjudging him guilty of burglary and sentence was pronounced accordingly. Judge DAVIDSON, then a member of this Court, reformed the same to conform to the charge in the indictment and verdict.
In the case of Reyna v. State, 26 Texas Crim. App. 666, the appellant was charged by indictment with the offense of knowingly attempting to pass as true, a false and forged instrument, etc. The jury found him guilty of said offense and assessed his punishment at confinement in the penitentiary for two years. Upon said verdict, judgment was rendered adjudging him guilty of forgery and he was sentenced accordingly. Judge WILSON, then a member of the Court, reformed the same to conform to the charge in the indictment and verdict of the jury.
Thus, it will be noted that this practice is not of recent origin but has been consistently followed since the enactment of the article above referred to.
The motion for a rehearing will be overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 281