The offense is theft, a felony; the punishment, confinement in the penitentiary for four years.
Appellant appeared in open court on the 5th day of March, 1930, waived the time for filing a motion for new trial and requested that sentence be pronounced. Pursuant to this request, a proper sentence was duly pronounced, which appellant accepted, no notice of appeal being given. Appellant was delivered into the custody of the sheriff and remained in jail several days. It appears that thereafter, during the same term of court at which he was sentenced, appellant participated in a jail delivery. On the 24th of March, 1930, during the term of court at which he was convicted, appellant was brought into open court in the custody of the sheriff for the purpose of enabling the court to set aside the former sentence. After entering an order attempting to vacate the former sentence, the court pronounced a second sentence condemning appellant to confinement in the penitentiary for not less than two nor more than four years.
The last sentence was illegally imposed, and can not be enforced, but the first was legal and should be executed. See William Turner v. State, 31 S.W.2d 809, this day decided. The last sentence *Page 639 is set aside and held for naught, and the original judgment affirmed.
Affirmed.
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.