Opinion
No. 14111.
Delivered February 4, 1931.
1. — Murder — Bills of Exception — Statement of Facts.
In absence of bills of exception and statement of facts, the action of the trial court in refusing to give special charge cannot be appraised.
2. — Procedure.
Where judgment and sentence are entered without regard to the suspended sentence statute, they will be reformed so as to be in accord with that law.
Appeal from the District Court of Smith County. Tried below before the Hon. Gordon Simpson, Judge.
Appeal from a conviction for murder; penalty, confinement in the penitentiary for ten years.
Reformed and, as so reformed, affirmed.
The opinion states the case.
Truman Warren, of Tyler, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is murder; penalty assessed at confinement in the penitentiary for a period of ten years.
The record is before us without a statement of facts and bills of exception.
A number of special charges were requested and refused, but without knowledge of the evidence that was before the trial court, we are unable to determine whether the special charges were properly refused or not. In the absence of information on the subject, the presumption prevails that in refusing the charges the action of the trial court was proper. However, we note that some of the special charges were given, and those which were refused bear no indorsement showing that their refusal was over the objection of the accused.
In writing the judgment, the court ignored the Indeterminate Sentence Law, whereby the sentence should have directed the confinement of the appellant in the State penitentiary for a term of not less than two nor more than ten years. The judgment in that respect is reformed, and as reformed it is affirmed.
Reformed and affirmed.