Davis v. State , 199 S.W.2d 779 ( 1947 )

HAWKINS, Presiding Judge.

Judgment in this case was affirmed on December 18, 1946, and motion for rehearing overruled on February 12, 1947. In his motion filed February 19, 1947, appellant calls attention to an error of the trial court in applying the indeterminate sentence statute. Art. 775, C.C.P. Vernon’s Ann.C.C.P. art. 775.

Punishment for the offense of failing to stop and render aid, Art. 1150, P.C., is imprisonment in the penitentiary “not to exceed five years or in jail not exceeding one year or by fine not exceeding five thousand dollars, or by both such fine and imprisonment.”

In applying the indeterminate sentence statute the trial court directed appellant’s imprisonment in the penitentiary to be not less than one year nor more tiran two years. It should have been for not less than one hour nor more than two years. Bevil v. State, 139 Tex.Cr.R. 513, 141 S.W.2d 362; Martinez v. State, 137 Tex.Cr.R. 434, 128 S.W.2d 398, 131 S.W.2d 971.

Appellant’s motion to correct sentence is. granted, and it is now ordered that the sentence be reformed and corrected to direct that appellant be confined in the penitentiary not less than one hour nor more than two years.