The offense is murder. The punishment assessed is confinement in the State penitentiary for a term of five years.
The record in this case shows that appellant's motion for a new trial was overruled on the 20th day of December, 1941, to which ruling he then and there excepted and gave notice of appeal to this court. The record further shows that the statement of facts and bills of exception were not filed within the ninety days after notice of appeal was given as required by Article 760, C. C. P. Hence the same cannot be considered by this court. See Miller v. State, 148 S.W.2d 426.
Appellant complains of the court's action in overruling his second application for a continuance. We have examined the same and are of the opinion that the court's ruling thereon was eminently correct because the grounds stated in the application would have required a continuance of the case for an indefinite time.
We note that the court, in sentencing the appellant, failed to take note of the Indeterminate Sentence Law in that he sentenced appellant to serve not less than five nor more than five years. The sentence will be reformed in accordance with the Indeterminate Sentence Law so that the defendant will be required to serve not less than two nor more than five years' confinement in the State penitentiary.
As reformed, the judgment of the trial court will be affirmed. *Page 531
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.