Opinion
No. 12790.
Delivered December 4, 1929.
Suspended Sentence — Practice.
Refusal to submit suspended sentence when defendant had never been convicted of a felony and offered proof in support of the proposition that he was twenty-four years old at the time of the trial was reversible error. Wilson v. State, 210 S.W. 802.
Appeal from the District Court of Wichita County. Tried below before the Hon. P. A. Martin, Judge.
Appeal from a conviction for transporting intoxicating liquor, penalty, two years in the penitentiary.
The opinion states the case.
Heyser Hicks of Wichita Falls, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for two years.
Appellant filed his application for a suspended sentence. He offered proof in support of the proposition that he was 24 years old at the time of the trial. It is further shown that he had never been convicted of a felony in this or any other state. The court refused to submit the question of suspension of sentence to the jury on the ground that it was not sufficiently shown that appellant was not over 25 years of age at the time of his trial. Appellant timely and properly excepted to such failure. We are unable to say that the testimony does not reasonably support appellant's theory that he was 24 years of age at the time he was tried. We are of the opinion that the question should have been submitted to the jury. See Wilson v. State, 210 S.W. 802; Taylor v. State, 257 S.W. 1105.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.