Opinion
No. 11652.
Delivered April 4, 1928. Rehearing denied May 9, 1928.
1. — Theft — No Statement of Facts — Nor Bills of Exception — Sentence Reformed.
There being no statement of facts nor bills of exception in the record, nothing is presented for review. The sentence is reformed to condemn appellant to confinement in the penitentiary for not less than two nor more than three years.
ON REHEARING.2. — Same — Record Not Perfected.
On rehearing, appellant claims that the statement of facts and bills of exception have been discovered to have been on file in the trial court, within proper time. No application for a writ of certiorari is presented, nor has any statement of facts or bills of exception been brought forward before this court, and the motion for rehearing will be overruled.
Appeal from the Criminal District Court of Dallas County. Tried below before the Hon. Grover Adams, Judge.
Appeal from a conviction for theft, penalty three years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction is for theft of property over the value of $50.00, punishment being three years in the penitentiary.
The record contains neither statement of facts nor bills of exception, hence nothing is presented for review. However, we notice that in sentencing appellant the court inadvertently omitted to give him the benefit of the indeterminate sentence. (Art. 775, C. C. P.) The sentence is reformed to condemn appellant to confinement in the penitentiary for not less than two nor more than three years.
As thus reformed the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
In the motion for rehearing on file, appellant asserts that we erred in our affirmance, and that the error will be demonstrated by an inspection of the statement of facts and bills of exception which he asserts have been discovered to be on file within the time prescribed by law. If these facts so stated be true, we regret very much they are not verified by the presentation of said documents. We cannot consider a statement of facts nor bills of exception which do not appear in a record, and the fact that such documents may be in the office of the clerk of the trial court, in no way brings them here. The motion for rehearing not being accompanied by an application for a writ of certiorari, or any showing that the statement of facts and bills of exception were properly filed, or are within the reach of this court, the motion for rehearing will be overruled.
Overruled.