
    CHAMPION v. STATE.
    (No. 9919.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.
    Rehearing Denied March 24, 1926.)
    1. Criminal law <§t=»l 144(14) — Refusal of trial court to submit special charge as to former plea of guilty to vagrancy, under'agreement with prosecution not to prosecute instant offense charged, complained of in bill of exceptions, not disclosing facts pertaining to such former plea, must be presumed proper, in absence of showing to contrary.
    Refusal of trial court to submit special chárge as to plea of guilty to vagrancy in justice court, under agreement with prosecution not to prosecute instant liquor offense charged, complained of in bill of exceptions, not disclosing facts pertaining to such former plea, must be presumed proper, in absence of showing to contrary.
    2. Criminal law <&wkey;ll84 — Clerical error in judgment sentencing accused will be corrected on appeal, and, as so reformed, will be affirmed, if otherwise proper.
    Clerical error in judgment sentencing accused, “not less than one nor more than 18 months,” instead of “not less than one year nor more, than 18 months,” will be corrected on appeal 'to the Court of Criminal Appeals, and, as 'so reformed, will be affirmed, if otherwise proper.
    
      Commissioners’ Decision.
    Appeal from District 'Court, Grayson County ; F. E. Wilcox, Judge.
    C. W. Champion was convicted of unlawfully keeping a building for storing and selling intoxicating liquor, and he appeals.
    Judgment reformed, and, as so reformed, affirmed.
    H. H. Cummins, of Denison, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was convicted in the district court of Grayson county for the offense of unlawfully keeping a building for storing and selling intoxicating liquor, and his punishment assessed at 18 months in the penitentiary.

The appellant has not favored us with a brief in this ease, and the record discloses only two hills of exceptions, complaining of the action of the court in refusing to submit his special charges to the jury, to the effect that if there was an agreement, either express or implied, between the county attorney and himself, that if he would plead guilty to vagrancy in the justice court that he would not he prosecuted further, to return a verdict of not guilty. The record fails to disclose any action of the district court on the plea of appellant, setting up former conviction in the justice court for vagrancy, nor is there anything in the record showing what time said plea was presented, if at all, to said district court; and, in the absence of any showing to the contrary, this court would have to presume that the action of the district court was correct in such matters, and consequently the record as presented fails to show any ei*ror in the court refusing said special charges above mentioned. Klein v. State (Tex. Cr. App.) 277 S. W. 1073. Zulkoski v. State (Tex. Cr. App.) 278 S. W. 441, on rehearing. The record as presented only submits issues of facts, while the learned judge properly in his charge submitted the law to the jury on every phase of the case raised by the testimony, without any objeetiqn by the appellant or his counsel thereto, and, after a careful examination of the entire record, we are unable to reach the conclusion that the jury was unauthorized in deciding said issues against the appellant in favor of the state.

The record discloses that the court, in' sentencing the defendant, ordered him to be confined in the penitentiary “not less than one nor more than 18 months,” which is shown by the record to be a clerical error, and should have been “not less than one year, nor more than 18 months.” Said portion of said sentence is here reformed to read that the appellant is to be confined in the penitentiary not less than one year nor more than 18 months.

The judgment of the trial court, and ‘the sentence thereof as reformed, is now in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of 'Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The motion for rehearing presents no new question, and no reason is perceived for a change of the view expressed upon the original opinion.

The motion is therefore overruled. 
      . <@z3>For other oases see same topie.and KEY-NUMBER in all Key-Numhered Digests and Indexes
     