
    James Hogg v. State.
    No. 24320.
    March 30, 1949.
    Motion for Rehearing Denied (Without Written Opinion) May 18, 1949.
    
      
      William E. Davenport, San Angelo, for appellant.
    
      Ernest S. Goens, State’s Attorney, Austin, for the state.
   KRUEGER, Judge.

Appellant was convicted for the offense of acquiring property of the value of $5 and less than $50 by giving a worthless check and not having sufficient funds on deposit with the bank against which the check was drawn to pay the same when presented for payment in due course of business. The indictment contained proper allegations for two prior convictions of similar offenses. Upon a plea of not guilty and a trial before a jury, he was found guilty and his punishment was assessed at confinement in the state penitentiary for a period of 3 years.

The record, as brought forward, contains neither bills of exceptions nor a statement of facts. The prosecution was brought under Art. 567b, of the Penal Code, which provides that where the accused has theretofore been twice convicted of such an offense, the punishment shall be not less than two nor more than ten years. The jury assessed his punishment at confinement in the state penitentiary for three years, but the court in passing sentence on appellant failed to apply the indeterminate sentence law. The sentence will therefore be reformed so as to read, the defendant shall be confined in the state penitentiary for not less than two nor more than three years, and as so reformed, the judgment of the trial court is affirmed.

Opinion approved by the Court.  