The certified copies of the record of the proceedings in the trial court show that while the defendant was present when the sentence of six years and one day imprisonment was announced by the court, yet the defendant was apparently not present when afterwards and during the same term of the court, the judge at the request of defendant's counsel directed the clerk to correct the judgment in the minutes of the court so as to impose a sentence of imprisonment for five years. This was done at the instance of defendant's counsel and was of course favorable to the defendant; but he had a right to be present when the sentence was changed by the court, even though the change be beneficial to the defendant; and the absence of the defendant when the five year sentence was imposed having been made an assignment of error, though not argued in the first brief, such assignment was not so waived as to preclude the matter being now presented on a further transcript of the record permitted to be filed in a rehearing granted by this court upon the same writ of error. It is very doubtful if the harmless error statute (Sec. 2812 Rev. Gen. Stats. 1920) was intended to cover a matter like this, i. e. the absence of a defendant when the judgment is materially altered though the alteration be favorable to the defendant, the sentence being to the State Penitentiary for *Page 1081 a felony. See 16 C. J. 1292, 1314; Brown v. State, 29 Fla. 543,10 South. Rep. 736; Sec. 6078 Rev. Gen. Stats. 1920.

If the defendant had been present when the sentence was changed, he might have presented matters that would have justified the court in adjudging either a shorter period of imprisonment in the penitentiary, or a sentence to imprisonment in the county jail or even in imposing a fine in lieu of imprisonment as the court was authorized to do under the statute. Sec. 5039, Rev. Gen. Stats. 1920.