
    People, Plaintiff and Appellee, v. Vázquez, Defendant and Appellant.
    Appeal from the District Court of San Juan in a Prosecution for Violation of Section 438 of the Penal Code.
    No. 1681.
    Decided March 31, 1921.
    Eeboneous Judgment — Stolen Goods. — A judgment imposing a fine or -alternative imprisonment for a violation of section 438 of the Penal Code, consisting in having purchased for the sum of $23 goods which the defendant knew were stolen, is erroneous because that offense is punishable only by imprisonment in the penitentiary or in jail; but it is not necessarily null and void and may be corrected on appeal.
    The facts are stated in the opinion"
    The appellant did not appear.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Me. Justice Aldeet

delivered the opinion of the conrt.

Appellant Ulises Vázquez did not appear at the hearing in this court, either by brief or by counsel, to plead errors in the judgment from which he has appealed. Nor is there included in the transcript of the record any bill of exceptions or statement of the case, but in examining the complaint and the judgment we observe that he was sentenced to pay a fine of one hundred dollars, or to one day’s imprisonment for each dollar not paid, on conviction of having purchased a certain amount of coffee for the sum of twenty-three dollars knowing that the coffee had been stolen, and that offense is made punishable by section 438 of the Penal Code by imprisonment in the penitentiary when the value of the thing stolen exceeds fifty dollars, or by imprisonment in jail when the value is less; but not by a fine.

Although there is a diversity of opinion in the decisions of the courts as to whether or not the fact that a sentence is not authorized by law renders the judgment void, we agree with those which hold that it is not void, inasmuch as there being no reason to hold that the conviction was erroneous, we should not reverse the judgment or order a new trial. Nor should we remand the case to the lower court for it to impose the proper penalty according to law, for section 346 of the Code of Criminal Procedure empowers this court to modify the judgment appealed from, which is what we should do in -this case so that the penalty may be in accordance with the law; therefore, we shall sentence the defendant to three, months in jail.

The judgment appealed from should be modified as to the penalty and, as so modified,

Affirmed.

Chief Justice Hernández and Justices Wolf, del Toro and Hutchison concurred.  