The unlawful transportation of intoxicating liquor is the offense, punishment fixed at confinement in the penitentiary for one year.
Appellant suggests that this court is without jurisdiction to determine the merits of the case. This view is based upon the fact that the appellant entered into a recognizance before the sentence was entered. He reasons that the effect of the recognizance was to defeat the jurisdiction of the trial court and thereby prevent the entering of the sentence, and that in the absence of a sentence this court is precluded by law from doing other than dismissing the appeal. The order overruling the motion for new trial bears the date of September 11, 1926, and the sentence bears the date of September 13, 1926. We understand that an appeal may be taken in a case less than capital only on the entry of the final judgment, which, according to the uniform construction of the statute, is the sentence. See collation of authorities in Branch's Ann. Tex. P. C., p. 338; also Vernon's Tex. C. C. P., 1925, Vol. 3, p. 150, note 3; Ridge v. State, 96 Tex.Crim. Rep.; Carlile v. State, 97 Tex.Crim. Rep.; Williams v. State, 99 Tex. Crim. 356. If, in fact, there was no sentence found in the record, the court would have no jurisdiction other than to dismiss the appeal. See Stanford v. State, 99 Tex. Crim. 394. However, such is not the condition in the present record. There is a sentence duly entered after the verdict and judgment, which sentence contains all the legal requisites. Notice of appeal from the sentence appears properly entered. The sentence, however, contains the recital that the entry of the sentence was opposed because the accused had previously entered into a recognizance. The time for the sentence is after the motion for a new trial is overruled. See Art. 768, C. C. P., 1925.
The position taken by the appellant that the sentence is void because entered after the recognizance is untenable. It is not the recognizance, but the final judgment and notice of appeal, which give jurisdiction to the appellate court. The reasons for opposing a sentence are set out in Art. 773, C. C. P., 1925. These are the showing that the accused has received a pardon; that he is insane; that there has been no motion for new trial or a motion in arrest of judgment and that he desires to make one and has good grounds therefor; that he claims he is not the person convicted. *Page 552
The state's evidence is direct and positive to the effect that the appellant unlawfully transported whiskey. The appellant's evidence presented an issue of fact. The verdict of the jury settled the conflict in favor of the State. We have been favored with no brief. An examination of the charge of the court fails to reveal any error requiring a reversal. There are no bills of exceptions complaining of the introduction of the evidence or other rulings of the court.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.