Opinion
No. 19436.
Delivered February 16, 1938.
1. — Burglary — Affirmance.
Where indictment was in proper form and record contained neither statement of facts nor bills of exception, conviction for burglary was affirmed.
2. — Burglary — Sentence Corrected.
Where defendant who had been convicted of burglary of post office in federal court was subsequently convicted of burglary in state court, sentence fixing his punishment for not less than two nor more than twelve years in penitentiary would be corrected so as to provide no minimum punishment, but that defendant should be confined in the penitentiary for a term of twelve years, under provisions of art. 62, P. C.
Appeal from the District Court of Wichita County. Hon. Allan D. Montgomery, Judge.
Appeal from conviction for burglary; penalty, confinement in penitentiary for twelve years.
Affirmed.
The opinion states the case.
Sam Spence, of Wichita Falls, for appellant
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for burglary, punishment being assessed at confinement in the penitentiary for a term of twelve years.
It was alleged in the indictment that appellant on or about the 14th day of January, 1937, burglarized a house belonging to one W. R. McConnell; it was further averred that prior to the commission of said offense, to-wit: on the 20th day of May, 1932, appellant was convicted in the District Court of the United States, Southern District of Texas, of an offense of like character, the burglary of a United States Post Office. Conviction was had under this count of the indictment under proper instructions of the court and punishment was assessed at twelve years in the penitentiary under the provisions of Art. 62 of the Penal Code.
The record contains neither statement of facts nor bills of exception. The indictment is in proper form.
We observe that in pronouncing sentence against appellant the court apparently overlooked the fact that the punishment of twelve years was a fixed punishment under the provisions of Art. 62, P. C., and sentenced appellant for not less than two nor more than twelve years in the penitentiary. The sentence will be corrected so as to provide no minimum punishment, but that it shall read that appellant be confined in the penitentiary for a term of twelve years.
The judgment is affirmed.
Affirmed.