
    KIRKPATRICK v. STATE.
    (No. 11652.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Rehearing Denied May 9, 1928.
    1. Criminal law <&wkey;1090(1)— Record containing neither statement of facts nor bills of exception presents nothing for review.
    On appeal from conviction, record containing neither statement of facts nor bills of exception presents nothing for review.
    2. Criminal law <&wkey;ll84, 1208(9) — Three years’ penitentiary sentence for theft of more than $50 does not give benefit of indeterminate sentence and should in proper case be changed to do so (Code Cr. Proc. 1925, art. 775).
    On conviction for theft of property worth more than $50, sentence of three years in penitentiary fails to give defendant benefit of indeterminate sentence, and under Code Cr. Proc. 1925, art. 775, should be reformed to condemn defendant to imprisonment for not less than two nor more than three years.
    On Motion for Rehearing.
    3. Criminal law <&wkey;1088(l4), 1128(1) — Appellate court cannot consider statement of facts nor bills of exceptions not in record, although they may be in office of trial court clerk.
    On appeal from conviction, appellate court cannot consider statement of facts or bills of exceptions which do not appear in record, and fact that such documents may be in ofiice of clerk of trial court does not entitle them to consideration.
    Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
    D. Kirkpatrick was convicted of the theft of property of over the value of $50, and he appeals.
    Reformed and affirmed.
    E. L. Roark, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, X

Conviction is for theft of property over the value of $50, punishment being three years in the penitentiary.

The record contains neither statement' of facts nor bills of exception, hence nothing is presented for review. However, we notice that in sentencing appellant the court inadvertently omitted to give him the benefit of the indeterminate sentence. Ar-ticlé 775, C. C. P. 1925. The sentence is reformed to condemn appellant-to confinement in the penitentiary for not less than two nor more than three years.

As thus reformed, the judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

In the motion for rehearing on file appellant asserts that we erred in our affirmance, and that the error will be demonstrated by an inspection of the statement of facts and bills of exception, which, he asserts, have been discovered to be on file within the time prescribed by law. If these facts so stated be true, we regret very much they are not verified by the presentation of said documents. We cannot consider a statement of facts nor bills of exception which do not appear in a record, and. the fact that such documents may be in the office of the clerk of the trial court in no way brings them here. The motion for rehearing not being accompanied by an application for a writ- of certiorari or any showing that the statement of facts and bills of exception were properly filed or are within the reach of this court, the motion for rehearing will be overruled.  