
    SMIDDY v. STATE.
    (No. 9124.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.)
    Criminal law <&wkey;1184 — Sentence, not following verdict as applied to charge of ooairt and indictment, held subject to reformation by Court of Criminal Appeals.
    A sentence, not following the verdict as applied to the charge of the court and the indictment, held subject to reformation under Code Cr. Proe. art. 938, by the Court of Criminal Appeals, so as to make it conform to such verdict.
    Appeal from'District Court, Wichita County ; P. A. Martin, Judge.
    Ennis Smiddy was convicted of the offense of passing a forged instrument, and he-appeals from the judgment of conviction and the sentence. Reformed and, as so reformed,
    affirmed.
    Fitzgerald & Hatchitt, of Wichita Falls, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense i§ unlawfully passing a forged instrument; punishment fixed at confinement in the penitentiary for a period of 4 years.

No necessity is perceived for stating or discussing the evidence. Suffice it to say that it is quite sufficient to establish the facts upon which the state relied for a conviction and upon which the verdict is based. No exceptions appear to have been taken to the introduction or exclusion of evidence or to the rulings of the court, save that denying the motion for new trial.

The indictment is regular and contains two counts, both of which were submitted to the jury in the charge of the court. A verdict was returned specifically finding him guilty of the second count in the indictment. Upon the verdict a judgment was entered declaring the appellant guilty of the offense of forgery and passing a forged instrument as found by the jury, and fixing his punishment in the penitentiary fqr a period of 4 years. It is declared in.the sentence that the conviction is “for receiving and concealing stolen property,” with punishment fixed at confinement in the penitentiary for a period of 4 years. The sentence should have followed the verdict as applied to the charge of the court and the indictment, and adjudged the appellant guilty of the offense of unlawfully passing a forged instrument in writing'and sentencing him to confinement in the penitentiary for a period of not less than 2 nor more than 4 years. Acting under the authority of the statute (article 938, C. C. P.) and its interpretation by the decisions of this court, the sentence will be corrected in accord with the above announcement, and, as thus reformed, the judgment will be affirmed. The precedents upon the subject of correcting the judgment to conform to the verdict are found collated in the recent case of Pearson v. State, 96 Tex. Cr. R. 453, 254 S. W. 953, 257 S. W. 895.

The judgment is reformed and affirmed. 
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