
    C. M. Henry v. The State.
    No. 17211.
    Delivered January 30, 1935.
    Rehearing Denied February 27, 1935.
    
      The opinion states the case.
    
      Ray Thurmond, of Tyler, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

The offense charged is the unlawful transportation of spirituous liquor capable of producing intoxication; penalty assessed at confinement in the penitentiary for two years.

The evidence upon which the verdict rests is not before this court. In the absence of the evidence we must assume that the facts are sufficient to support the conviction.

The sentence is inaccurate in that it contains the statement that the conviction is for transporting and possessing liquor. It is also inaccurate in failing to give effect to the Indeterminate Sentence Law in that it condemns appellant to confinement in the penitentiary for two years. The sentence will be reformed in the particulars mentioned so as to declare appellant convicted of the offense of transporting spirituous liquor capable of producing intoxication, and that he be confined in the State penitentiary for a term of not less than one nor more than two years.

As reformed the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.

HAWKINS, Judge.

It appears that the judgment as well as the sentence was inaccurate in that appellant was adjudged to be guilty of both transporting and possessing intoxicating liquors. The sentence was reformed in our original opinion, but the mistake in the judgment was overlooked. The trial court submitted only the count charging transportation, and the judgment should have been for that offense. It will also be reformed to adjudge appellant guilty of the transportation of intoxicating liquor.

With such correction in the judgment, appellant’s motion for rehearing is overruled.

Overruled.  