Stutzman v. State (10 S.W.2d 100, 1928)

MORROW, P. J.

On the 26th day of Jan-nary, 1923, in the district court of the Sixty-judicial district, sitting in Kinney county, the appellant, upon a verdict of the jury, was adjudged guilty of the offense of passing a forged instrument and condemned j-0 confinement in the penitentiary for a period of five years, that being the number of years assessed by the jury which rendered verdict against him. Under the law the judgment should have condemned Sim to confinement in the penitentiary for a period 0f uot less than two nor more than five years, His case was appealed to this court and was aecompanied by no statement of facts, No complaint was made of the fault in the judgment. If the attention of the court had been called to the inaccuracy in the judgment, it would have been corrected on the appeal under the authority of article 847, O. o. P. 1925. The Indeterminate Sentence Law set forth in article 775, O. O. P. 1925, leaves neither with this court nor the trial court any discretion with reference to the terms of the judgment. The writing and record-jng of the judgment in the trial court, in accord with the terms of the Indeterminate Sentence Law, are not judicial but clerical matters subject to correction either in term time or in vacation by proper procedure, See R. S. 1925, arts. 2229, 2230. It has been the practice of this court when, by inad-yertence, article 775, supra, has not been fol-iowe(j ⅛ preparing the judgment of the trial 0011]⅜ t0 enter a proper judgment when pass-in„- Upon the appeal.

It is therefore ordered that the judgment of this court heretofore entered ordering an aflirmance. of the judgment of the district court be corrected in the particular mentioned. The judgment of affirmance will be g0 corrected as to reform the judgment, and, as refo™ed, the judgment of this court will condemn the appellant to confinement m the penitentiary for a period of not less than two nor more than five years; and the clerk of this court will notify the superintendent »£ the state penitentiary and the clerk- of the district court of Kinney county of the present action of this court in the premises.