Edwards v. State (261 S.W.2d 166, 1953)

DAVIDSON, Commissioner.

This is a conviction, upon waiver of trial by jury and plea of guilty before the court, to the offense of assault with intent to murder, with punishment assessed at five years in the penitentiary.

This case involves the same question presented by another case against this appellant. Tex.Cr.App., 261 S.W.2d 165.

We note, however, that in this case the trial court in passing sentence failed to apply the indeterminate sentence law, Vernon’s Ann.C.C.P. art 775. Accordingly, the sentence is reformed so as to read “not less than two nor more than five years’ confinement in the penitentiary.”

As so reformed, the judgment is affirmed.

Opinion approved by the Court.

On Motion for Rehearing

GRAVES, Presiding Judge.

The appellant was charged in this cause in the same court as 261 S.W.2d 165, the offense herein being an assault with intent to murder for which he received a penalty of five years in the state penitentiary. The sentence in said cause was reformed in the original opinion so as to read “not less than two nor more than five years’ confinement in- the penitentiary.” Finding no statement of facts herein, we are unable to say that an assault with intent to murder with malice was not proven on the trial.

It is noted from the indictment herein that appellant was charged with assault with intent to murder. The judgment found him guilty as thus alleged in the indictment, he having pleaded guilty before the court. Under these circumstances we see no reason for disturbing the finding in our original opinion.

The motion for rehearing is overruled.