The opinion
*160
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
Because of the penalty assessed we have again examined the statement of facts. The punishment can be attributed to the brutal conduct of appellant.
In his motion for new trial appellant averred that one of the jurors was prejudiced against appellant, and had not apprised appellant and his counsel of his feeling upon his voir dire examination. The motion was supported by affidavit. The State replied to said motion specifically denying- the charges that had been made against the juror, and supported said denial by affidavits. The order of the trial court overruling the motion contains the following recital.
“* * * the Court having considered the affidavits attached to defendant’s motion, together with the affidavits attached to the State’s answer, and after having heard testimony from both sides, and being thoroughly familiar with the credibility of the witnesses and observing their conduct upon the stand, and having again carefully reviewed each and every matter raised in the court of the trial, the rulings made thereon, and the court’s action, and having heard argument of counsel, the defendant’s motion for a new trial is in all things overruled.”
It is clear from said recital that the court heard evidence upon the motion. This evidence is not brought forward either by bill of exception or statement of facts. The action of the trial court upon a motion will not be disturbed under circumstances such as here stated. Crouehett v. State, 99 Tex. Cr. R. 572 , 271 S. W. 99 ; Hoppe v. State, 122 Tex. Cr. R. 440 , 55 S. W. (2d) 1053 , and cases therein cited; Brown v. State, 101 Tex. Cr. R. 63 , 274 S. W. 588 ; Sanders v. State, 117 Tex. Cr. R. 426 , 36 S. W. (2d) 1032 .
We observe that in pronouncing sentence against appellant the trial court overlooked giving application to the indeterminate sentence statute, Art. 775 C. C. P. The sentence will be. reformed to direct that appellant be confined in the penitentiary for not less than five years nor longer than his natural life.
The motion for rehearing is otherwise overruled.