Appellant files an extended and ingenious argument based upon the proposition that a change was made in the verdict of the jury after same was returned into court, the change being made with the consent of the jury and by the court. We have examined each of the five bills of exception appearing in the record and find no complaint in any of them, nor do we find any reference to this proposition in the motion for new trial. In the judgment of conviction it is set out that when the jury brought in their verdict they found the appellant guilty of murder and "recommended" his punishment at twenty-five years in the State penitentiary. It is further recited in said judgment that this was corrected by erasing the word "recommended" and inserting the word "assess," and that after being so corrected each juror stated the corrected verdict was his verdict. If this matter was before us so that it could be considered, our opinion would be that it was such matter as the court had the right to correct with the consent of the jury, and that no error appears. Art. 696 Cow. C. P.; Fifer v. State, 64 Tex. Crim. 203; Gould v. State, 66 Tex.Crim. Rep..
If the charge of the court is correctly copied in the transcript on appeal, the definition of murder found therein would be incorrect to the extent that it omits the word "voluntarily." No complaint was made of any such matter in the motion for new trial, or by any exception to the charge. Plainly the matter as it here appears is a clerical error on the part of those who prepared the transcript. Examining the charge further, it is found that in applying the law to the facts the court correctly told the jury that they must find beyond a reasonable doubt that appellant intentionally killed, etc.
The motion for rehearing will be overruled.
Overruled *Page 226