
    HAILER v. STATE.
    (No. 9532.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.
    Rehearing Denied Dec. 23, 1925.)
    1. Criminal law <©=3968(13) — Objection, by motion, in arrest of judgment "to minutes of district court, defective in failing to show return of indictment of accused, held too late to merit consideration.
    Objection, by motion, in arrest of judgment to minutes of district court, defective in failing to show return of indictment of accused, came too late to merit consideration, where, if the objection had been made in limine, the minute entry could have been made nunc pro tunc.
    2. Criminal law <©=31184 — Sentence made pursuant to verdict held subject to correction.
    In a prosecution for manufacturing intoxicating liquor, where the verdict fixed the penalty at 2 years in the penitentiary, a sentence which directed accused be confined in the penitentiary for two years will be corrected, so as to direct confinement therein for not less than one nor more than two years.
    
      Appeal from District Court, Chambers County; J. M. Combs, Judge.
    W. J. Hailer was convicted of manufacturing intoxicating liquor, and he appeals.
    Sentence reformed, and judgment, as corrected, affirmed. ,
    E. B. Pickett, Jr., of Liberty, 'for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Chambers county of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

Officers, searching for contraband liquor, found appellant in a house alone, and in a little outhouse a short ways from the dwelling they found two new stills running intoxicating liquor. There were also four or five barrels of mash in said outhouse and two 15-gallon kegs each about half full of whis-ky. Appellant’s car was in a nearby garage with some whisky in it and quite a number of empty whisky bottles were under the back seat. There was a plain trail from the dwelling to the little outhouse. Appellant’s defense was that a negro named Sterling was the maker of the whisky, and that he had gone out the night before to get some whisky from Sterling and found it not yet cooked off, and that he remained all night at the house with the expectation of getting some liquor in the morning. Appellant explained his failure to produce Sterling by saying that the latter was dead; that he had died shortly lifter said raid. The officer testified that the raid was made about the 30th of August and the state, by other testimony, showed that said negro, Sterling, died on the 18th of August.

Appellant made a motion in arrest of judgment upon the ground that the minutes of the district court of Chambers county failed to show that any indictment was returned against him. A number of cases are, collated on page 190, Vernon’s Annotated C. C. P., under article 446 of same, supporting the proposition that defects or omissions in the entry upon the minutes of the district court as to the presentment can only be availed of when the objection is made in limine; also- holding that such defects are not available after verdict. Proof was adduced on the hearing of appellant’s motion showing the proper organization of the grand jury and the proper return into open court of .the indictment herein, and of the fact that the indictment was properly presented and filed by the clerk. We are of opinion that, had the objection of appellant been made in limine, the minute entry could have been made nunc pro tunc, -and that the objection comes too late.

The sentence pronounced recites that appellant has been adjudged guilty, etc., and his punishment assessed by the verdict of the jury at confinement for not less than one nor more than two years, and then proceeds to direct that he be confined in the penitentiary for two years. This was all incorrect. The verdict fixed the penalty at two years in the penitentiary, and the sentence should have directed confinement therein for not less than one nor more than two years. Said sentence will be corrected to conform to what has just been said, and as reformed will be affirmed.

The judgment is affirmed. 
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