
    T. Thomas v. The State.
    No. 5730.
    Decided March 24, 1920.
    Rape—Suspended Sentence—Practice on Appeal.
    Where, upon appeal from a conviction of rape, the record showed that the trial court entered judgment upon the verdict suspending sentence, and the verdict transcribed in the judgment failed to show any finding of the jury upon the question of suspended sentence, and did not contain the final sentence, the appeal must be dismissed.
    Appeal from the District Court of Fort Bend. Tried below before the Honorable M. S. Munson.
    Appeal from a conviction of rape; penalty: six years imprisonment in the penitentiary.
    
      Stevens & Stevens, for the appellant.
    
      Alvin M. Owsley, Assistant Attorney General for the State.
    On question of final sentence: Dowell v. State, 213 S. W. Rep., 649.
   DAVIDSON, Presiding Judge.

Appellant was convicted of rape and given six years in the penitentiary.

The record before us contains the verdict of the jury alloting appellant six years in the penitentiary. The court enters a judgment upon the verdict and in addition suspends the sentence of the defendant, stating in the judgment that it was upon the recommendation of the jury. The verdict as transcribed in the judgment fails to show any finding of the jury upon the question of suspended sentence. It is not mentioned either for or against appellant in their finding on this question. If the verdict is incorrectly transcribed and the jury did find in favor of appellant on the suspended sentence, we might correct this judgment and make the matters conform to each other and with the law as prescribed by the statute. There would be no right of appeal from a conviction if suspended sentence was awarded, because of the want of a final judgment, which is the sentence pronounced by the court upon the verdict, but the record does not contain the sentence. So from either view point this court cannot entertain jurisdiction of the appeal. If a suspended sentence is legally awarded, an appeal cannot be prosecuted.' If this was not the case, then the appeal must be dismissed because there is no sentence contained in the record.

The appeal, therefore, will be dismissed.

Dismissed.  