#### LEE v. STATE.

No. 21824.

Court of Criminal Appeals of Texas.

Dec. 17, 1941.

On Motion to Reinstate Appeal Jan. 28, 1942.

D. L. Harry, of Jacksonville, for appellant.

Spurgeon E. Bell, State’s Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a sentence of four years in the penitentiary on a charge of murder assessed upon a jury verdict in Cherokee County.

Statement of facts in this cause is not approved by the court and, therefore, cannot be considered. The record contains no sentence passed by the court in accordance with the judgment and we find no notice of appeal in the record.

This court has no jurisdiction of any matter presented in this appeal. It is, accordr ingly, dismissed.

On Motion to Reinstate Appeal.

GRAVES, Judge.

This cause was heretofore dismissed because no sentence and no notice of appeal were found in the record. These defects have been remedied, it being shown to have been an oversight upon the part of the clerk making up the transcript, and a proper sentence and notice of appeal being now shown, the judgment of this court dismissing such appeal is set aside, and the cause will be decided upon its merits.

A statement of facts signed and approved by the trial court, and timely filed in the court below, is also now present in the record. There are no bills of exception in the record.

The salient facts presented are briefly that Jesse Lee and Levanna Lee were husband, and wife, and Gertha Jones was the wife of Anderson Jones, the deceased. That after a meeting at a negro church, Gertha, the wife of deceased, requested that Levanna Lee, who was her sister, and Jesse Lee, Le-vanna’s husband, accompany Gertha home, she being afraid of the deceased. That they started off together, when the deceased accosted them and demanded that Gertha go home with him. That an argument ensued, and the deceased picked up a rock and threatened to hit his wife with it; that Jesse Lee finally threw the deceased down and somebody used a knife, the blade finally being broken out of said knife; that Levanna Lee was on top of the deceased, and she called for Gertha to give her a razor. Ger-tha produced the razor and gave same to *500Levanna. Jesse Lee then told Levanna to “cut his throat,” and she replied, “I can’t do it”; he then said “Give it to me,” and Jesse took the razor and cut Jones’ throat, and then Levanna caught “the body by the hand and threw it several feet and turned it over on the face.”

A merciful jury found the two women guilty of murder without malice, and a five year sentence, which was suspended during good behavior. Jesse Lee was found guilty of murder without malice and given four years in the penitentiary, and his sentence was not suspended, hence his appeal.

The trial court failed to observe the provisions of the indeterminate sentence law and sentenced Jesse Lee, the appellant, to not less than four nor more than four years in the penitentiary.

 We think the facts are sufficient to support the verdict herein against the appellant. The sentence is hereby reformed so as to confine appellant in the penitentiary in this cause not less than two years nor more than four years, and as reformed the judgment is affirmed.