Opinion
No. 21199.
Delivered November 6, 1940. State's Motion for Rehearing Granted January 15, 1941.
Appeal Dismissed — Notice of Appeal.
Where no notice of appeal appeared in the transcript, Court of Criminal Appeals was without jurisdiction to entertain the appeal, and appeal was dismissed.
Appeal from District Court of Liberty County. Hon. Thos. B. Coe, Judge.
Appeal from conviction for theft of cattle; penalty, confinement in penitentiary for ten years.
Appeal dismissed.
The opinion states the case.
David E. O'Fiel, of Beaumont, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for theft of cattle, punishment assessed at ten years' confinement in the penitentiary.
The record is before the court without a statement of facts or bills of exception. Nothing of a procedural nature is presented for review. However, it appears that the court overlooked giving effect to the indeterminate sentence law as provided by Art. 775 C. C. P. The sentence is amended to direct that the punishment be confinement in the penitentiary for not less than two nor more than ten years.
As thus amended the judgment is affirmed.
ON STATE'S MOTION FOR REHEARING.
Conviction was for cattle theft, with punishment assessed at ten years in the penitentiary.
At a former day of the present term, to-wit: — on November 6, 1940, a judgment of affirmance was entered. In a motion filed December 12, 1940 the representative of the State calls attention to the fact that no notice of appeal appears in the transcript forwarded to this court, and therefore, the court was without jurisdiction to entertain the appeal.
The motion of the State is granted, the judgment of affirmance is set aside, the mandate of this court reflecting said judgment is recalled, and the appeal is now dismissed.