
    John ALLEN v. STATE.
    (No. 10975.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    Rehearing Denied Oct. 19, 1927.
    Commissioners’ Decision. Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Hiram G. Brown, of Mt. Pleasant, for appellant. Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of murdering one R. T. Blalock on or about May 10, 1923, and his punishment assessed at 12 years in the penitentiary. The record is before us without a statement of facts or bills of exception, but discloses that the trial court, in sentencing appellant, ignored the provisions of the indeterminate sentence law and ordered that he be confined in the penitentiary for 12 years. The sentence is now reformed, so as to read that the appellant shall be confined in the penitentiary for not less than 5 nor more than 12 years. Finding no reversible error in the record, the judgment of the trial court, as reformed, is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Cr-iminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews complaint of the overruling of his application for continuance. We have again examined the record. While there appears in same an application for continuance, there is nothing to show that said application was ever presented to the court below, nor is there any order overruling such application, nor any bill of exceptions complaining of such refusal. In order for this court to consider the supposed error of the refusal of, a continuance, it must appear that the same was presented, refused, and such refusal excepted' to. Appellant presented a motion for new trial, which was overruled. The order of the court overruling said motion recites that the court heard said motion “and the evidence thereon submitted,and is of the opinion that same should be overruled. We fail to find in the record any bill of exceptions setting out the testimony that was heard by the court upon the presentation of said motion. In the absence of such testimony being brought before us in some way, we are unable to decide whether the court erred in overruling said motion. The motion for rehearing is overruled.  