
    GAINES v. STATE.
    No. 24921.
    Court of Criminal Appeals of Texas.
    June 21, 1950.
    No appearance for appellant.
    George P. Blackburn, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction for burglary, with the jury’s verdict assessing a penalty of three years in the penitentiary.

Appellant has filed his affidavit to withdraw the appeal. We note, however, that the record contains an erroneous judgment in that it .first copies the jury’s verdict assessing the penalty of three years, based on the first count of the indictment. The judgment then recites “ * * * that he shall be punished, as has been determined by the jury, by confinement in the penitentiary of the State of Texas at hard labor for not less than Two (2) nor more than Three (3) years, * *

The judgment should read that he shall be confined in the penitentiary for a period of three years, as found by the jury, and it is now amended accordingly.

In the form which we find the record we decline to grant the motion to withdraw the appeal but affirm the judgment as amended.  