ON SECOND MOTION FOR REHEARING.
HAWKINS, Presiding Judge.Attorneys for appellant have requested leave to file a second motion for rehearing which is presented in connection with the said request. We think it necessary to consider the second motion.
*45A condition of the record is pointed out which is not only-confusing to this court but equally so to appellant’s present attorneys, who had no connection with the case until after the appeal was perfected. It is proper to say that the confused record is not attributable to any attorney in the case, and this court is still unadvised as to how it occurred.
The original transcript on file in this court shows the docket number of appellant’s case in the trial court to have been 3631, and reflects a judgment of conviction in said case. The judgment contains all the necessary recitals preceding a verdict of guilty, which is incorporated in the judgment, and which assesses appellant’s punishment at a fine of one hundred dollars; then follows an adequate judgment of conviction which remands appellant to the custody of the sheriff until said fine and costs are paid. A notation following the judgment indicates that it is of record in Criminal Minutes Book H, page 530. The transcript containing said judgment is certified as correct by a deputy county clerk of Harrison County. It is on the judgment thus reflected that our opinion of affirmance and overruling of the motion for rehearing is based.
Attached to appellant’s second motion for rehearing is a copy of a judgment in the same cause (No-. 3631) certified as correct by the same deputy clerk who' certified to the correctness of the original transcript. The judgment reflected by the copy attached to the second motion shows the same proper preliminary recitals, and the same verdict of guilty as appears in the judgment in the original transcript, but following the verdict as shown in the certified copy attached to said second motion appears the following:
■ “It is. therefore considered, ordered and adjudged by the Court, that the State of Texas recover nothing by this prosecution, and that the defendant M. A. Kuhn be immediately discharged from all further liability upon the charge from which he has been tried, and that he go hence without day.”
The whole record shows a conviction. Appellant would' not be appealing to this court from a judgment of acquittal. Appellant’s amended motion for a new trial repeatedly refers to the “judgment of conviction” as unauthorized for various reasons set up in the motion. Appellant’s recognizance recites that appellant had been “convicted of a misdemeanor as more *46fully appears by the judgment of conviction entered in this cause.”
The judgment discharging appellant following the verdict of guilty as it appears in the copy attached to the second motion for rehearing was a judgment which could not have been legally pronounced. Art. 847 C. C. P., among other powers conferred upon this court, is that of reforming and correcting a judgment “as the law and the nature of the case may require.” The holdings of this court under said authority are epitomized in Branch’s Ann. Tex. P. C. Sec., 668, as follows: “The Court of Criminal Appeals has power to reform and correct the judgment as the law and the nature of the case may require, and when on appeal the court has the same data for the reforming or correction of the judgment as the trial court would have were the judgment reversed or the appeal dismissed, the judgment will be reformed and corrected on appeal.” Many cases are cited supporting the text.
If the judgment as it appears in the original transcript is incorrect, and the judgment as it appears in the criminal minutes is reflected in the copy attached to appellant’s second motion for rehearing, it is patent that same is an error. This court has before it in the record all the data necessary to reform the judgment, and the same is reformed following the verdict to read as follows:
It is therefore considered, ordered and adjudged that the defendant, M. A. Kuhn is guilty of the offense of possessing for the purpose of sale in Harrison County, Texas, a dry area, beer, an alcoholic beverage containing alcohol in excess of one-half of one percent by volume and not more than four percent by weight, and that the State of Texas do have and recover of the defendant, M. A. Kuhn the said fine of one hundred dollars and all costs of this prosecution, and the defendant is placed in the custody of the sheriff of said Harrison County who will commit him forthwith to the jail of said county until said fine and costs are paid. And execution may issue against the property of the said defendant for the amount of said fine and costs.
Appellant’s second motion for rehearing 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.