¶1 on state’s motion for rehearing.
¶2 The State has filed a motion for rehearing in this cause with an exhaustive argument making the contention that the original opinion was in error in stating that no final judgment had been entered in the prior case, which was being utilized in the instant case for the purpose of enhancing the penalty. Carefully considering this argument, and without discussing the authorities therein referred to, we call attention to Article 767, Vernon’s Ann. C. C. P., which reads as follows: “A ‘sentence’ is the order of the court, made in the presence of the defendant, emd entered of record, (emphasis ours) pronouncing the judgment,” etc. The statute having provided that the sentence must be “entered of record,” a notation on the docket will not suffice. Blackburn v. State, 138 S. W. (2d) 106; Bertrand v. State, 136 S. W. (2d) 849.
¶3 We are, then, relegated to the question of whether or not the entry, as found on the record, was a final judgment. The State argues that it is, because appellant went to the penitentiary and served his sentence under it. We do not think that the fact *115 of Ms acceptance made it a final judgment. Many instances could be found where a party has served a portion, and sometimes all of a penitentiary sentence under a void judgment, but such facts can not be pleaded against him in bar of a contention that the judgment was void. For like reason it can not be said that the judgment is final because the party accepted it as such. Had the case been appealed to this court it would have presented a question as to the finality of the judgment, but in a record with facts sufficient to enable this court to correct the sentence, at which time it would have become final. Ordinarily, of course, judgments that are not final are not appealable but it has been the holding of this court from the beginning of its history that in such condition of the record the sentence will be corrected and, in the case of affirmance, it becomes final from that date. Patton v. State, 136 S. W. 42; Holden v. State, 267 S. W. 275.
¶4 It is perfectly proper for the court, under the circumstances described, to enter the order nunc pro tunc as asked by the State, but such order cannot change the fact that the sentence as entered did not retroactively make final the judgment in the case prior to the time the offense in the case at bar was committed, and prior to the indictment returned herein.
¶5 The State’s motion for rehearing is overruled.