ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing appellant earnestly asserts that in the original opinion delivered in this case we erred in several respects: First, in holding the evidence sufficient to sustain the conviction; and second, in holding the judgment sufficient to show a verdict of a jury of six men.
*44We do not deem it necessary to discuss the first question further than to say that we have again read the statement of facts with great care and deem the evidence sufficient upon which the jury could justly base the verdict of guilty.
The judgment recites, among other things, that “Thereupon a Jury to-wit: ____________ and five others, etc.,” clearly indicating that there was a jury of more than five men. This is a case in which the County Court had original jurisdiction. Art. 578, C. C. P., specifically provides for six jurors in the trial of cases in the County Court. Therefore, the presumption obtains that the court followed the law unless the contrary is made to appear. Moreover, a defendant has a right to agree to be tried by a jury of five men. See Stell v. State, 14 Tex. Cr. App. 59; Mackey v. State, 68 Tex. Cr. R. 539, 151 S. W. 802; Schulman v. State, 173 S. W. 1195, 76 Tex. Cr. R. 229.
Appellant contends that there is a conflict between the verdict of the jury and the judgment in that the verdict recites:
“We the Jury find the Defendant guilty as charged and assess his punishment at a fine of One Hundred Dollars and costs,” while the judgment discloses an acquittal. We do not find such to be the case. The judgment, after setting out the verdict, recites:
“It is therefore considered, ordered and adjudged and __________ by the court that the State of Texas do have and recover of the Defendant the said fine of One Hundred Dollars and all costs of this prosecution, etc.”
The motion for rehearing is 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.