
    MITCHELL v. STATE.
    No. 21198.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    On Rehearing Jan. 15, 1941.
    David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of cattle theft, and on an allegation of a former conviction for a similar offense he was given a penalty of ten years.

The record is before us without bills of exception.

Appellant testified in his own behalf and said that he had taken the cattle at the instance of his cousin under the belief that they belonged to his cousin’s father and that he had authority to take them. The jury declined to accept the defensive theory presented by appellant, and assessed the very heavy penalty. The circumstances surrounding the taking of the cattle and the transporting of them to Plouston for sale, with which appellant was intimately connected, justifies the jury in reaching the conclusion which they did. It is not for this court to say that they exceeded their authority. The court overlooked giving effect to the indeterminate sentence law as provided by Art. 775, C.C.P., Vernon’s Ann. C.C.P. art. 775. The sentence is amended to direct that the punishment be confinement in the penitentiary for not less than two nor more than ten years. Otherwise the record appears to be in every way regular, and the judgment of the trial court as amended is affirmed.

On State’s Motion for Rehearing.

BEAUCHAMP, Judge.

On November 6, 1940, during the present term, the judgment in this case was reformed and affirmed. Subsequently the state has filed a motion to set aside that order on the ground that there was no notice of appeal in the record and that this court is without jurisdiction to enter such order.

Upon further examination of the record the motion is granted, the judgment of af-firmance set aside and the mandate of this court reflecting such judgment is recalled and the appeal is dismissed.  