The judgment of the trial court adjudges appellant to be guilty of the offense of "swindling by bad check" and provides that he be punished by confinement in the state penitentiary for a term of "not less than two years nor more than five years."
In his motion for rehearing appellant contends that the judgment is void because (a) there is no such offense as swindling by bad check, and (b) the judgment is neither definite nor certain as to punishment.
It is clear from the indictment, the charge of the court and the verdict of the jury that appellant was charged with and convicted of the offense defined in Art. 567b of the Penal Code, the offense charged being the offense of obtaining money with intent to defraud by drawing a check in the amount of fifty dollars or more without sufficient funds.
The judgment is improper, but we do not agree with appellant's contention that it is void. *Page 249
The case of Ex Parte Traxler, 147 Tex.Crim. R.,184 S.W.2d 286, relied upon by appellant, does not sustain his contention. Traxler had been tried on a plea of guilty before the court, he having waived a jury, and therefore the judgment of the court performed the functions of a verdict. Under such facts we held the judgment was void for uncertainty, there being no method by which the punishment assessed could be determined. Presiding Judge Hawkins, after stating the rule governing uncertain verdicts, makes plain our holding on the question in this language:
"The judgment of a court where a jury has been waived partakes of the very same nature and constitutes a necessary element of the procedure as fully and completely as does the 'verdict' when the evidence is heard by a jury."
"If the case was pending before us on appeal and we had a charge from the court, and the verdict of a jury which really fixed a definite punishment, we could perhaps correct the judgment, but not under the circumstances here present."
Edwards v. State, 153 Tex.Crim. R., 219 S.W.2d 1022, and other cases, including Ex Parte Herman East, (Page 123 of this volume), were cases where the trial was on a plea of guilty before the court; and the judgments in such cases, which attempted to apply the indeterminate sentence law (Art. 775, C. C. P.), were held void for uncertainty.
In Edwards v. State, 153 Tex.Crim. R., 223 S.W.2d 927, cited by appellant, the trial was by a jury and there was in the record a verdict showing a definite punishment. The judgment was held to be improper for attempting to apply the indeterminate sentence law. The judgment, however, was not held to be void. The court said: "It should have read for one year." The effect of such holding was to reform the judgment as well as the sentence. As reformed, the judgment was affirmed.
Other questions raised we believe have been properly disposed of in our original opinion.
The judgment and sentence are reformed so as to state the offense as obtaining money with intent to defraud by drawing a check in the amount of $50 or more without sufficient funds. The judgment is reformed so as to fix the punishment at confinement in the state penitentiary for five years.
As so reformed, appellant's motion for rehearing is overruled.
Opinion approved by the court. *Page 250