
    CALLOWAY v. STATE.
    (No. 6781.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <@=>982—Submission of question of suspending sentence to jury held error.
    In a prosecution for burglary, where the accused had been convicted in a prior case and had been given a suspended sentence, submission of the question of suspended sentence to the jury was error.
    2. Criminal law <@=o982—Striking out recommendation of suspended sentence from verdict held error.
    In a prosecution for burglary in which defendant had been convicted for a prior offense and was at liberty on a suspended sentence, striking out the jury’s recommendation in its verdict for a suspended sentence in the second prosecution was error.
    3. Criminal law <@=>992—Rendering judgment and imposing sentence not in response to verdict of jury held error.
    In a prosecution for burglary, where defendant had been convicted of a prior offense and was at liberty under a suspended sentence, on conviction with a recommendation for a suspended sentence, sentencing defendant to a term of imprisonment including the terms in both cases was error, as not being in response to a verdict of the jury, contrary to requirement of Vernon’s Ann. Code Cr. Proe. 1916, art. 853.
    4. Criminal law <@=>304(16) — Conviction at prior term within judicial knowledge.
    The fact that defendant had been convicted of an offense at a prior term of the court was within the judicial knowledge of the court.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    O. T. Calloway was convicted of burglary, and he appeals.
    . Judgment reversed, and judgment of conviction in a prior ease reinstated.
    Grady Sturgeon, of Honey Grove, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Fannin county of burglary, with punishment fixed at five years in the penitentiarj'.

This conviction was had' at the February term, 1921, of the court below. Applica,tion for suspended sentence was made, and, upon the jury’s finding in appellant’s favor thereon, a judgment was duly entered suspending the sentence, and appellant was given his liberty upon his own recognizance as directed by statute. It is made to appear that thereafter at a subsequent term of said court appellant was put upon trial in another felony case, and that in said latter cause the issue of suspended sentence was again submitted to the jury. This latter proceeding was erroneous. See Hill v. State, cause No. 6678, 243 S. W. -, opinion this day handed down.

In said second case above referred to the jury again recommended a suspension of sentence. Upon motion of the state the trial courts seems to have struck out the recommendation of the jury for such suspension of sentence in said second ease, and sentence was pronounced against appellant directing his confinement for a period of five years in the penitentiary, without suspension. Thereupon in the instant case the state proceeded under the terms of article 865e, Vernon’s O. C. P., to set aside the suspended sentence therein given to appellant, and sentence was duly pronounced against him for the full term of five years, which sentence was made cumulative of that given to appellant in the case tried at the later term to which appellant excepted, and brings the case before us on appeal. In our opinion the trial court erred in sustaining the state’s motion to strike out that part of the jury’s finding in said later trial, being cause No. 9455 on the docket of the court below, which recommended the suspension of the sentence.

We also believe the court erred in rendering a judgment and imposing sentence upon the appellant not in response to the verdict of the jury. .

Primarily said court erred in submitting the law of suspended sentence, inasmuch as the accused had theretofore been convicted of a felony, which conviction was within the judicial knowledge of the trial court, having been had at a former term thereof. Having submitted the issue of suspended sentence in cause No. 9455, neither the trial court nor this court could know that the term of years given appellant by the verdict in said case was not affected by the further fact that said jury were led to believe that they might also suspend over the head of appellant as an incentive to good behavior the sentence reflecting the execution of the judgment and verdict. That the jury were mercifully inclined toward appellant was evidenced by their grant of suspended sentence. Piad the case been submitted without instruction that they might suspend said sentence, said jury might not have given a punishment greater than "the minimum of two years allowed by law.

Our Code of Criminal Procedure prescribes the requisites of a final judgment in a criminal proceeding. Article 853, Vernon’s C. C. P The tenth subdivision of said article is as follows:

“That the defendant be punished as has been determined by the jury in eases where they have the right to determine the amount or the duration and the place of punishment in ae-cordance with the nature and terms of the punishment prescribed in the verdict.”

See Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998.

A judgment which did not substantially embody the finding of the jury would be wrong, and from the consequences of such judgment the accused would be entitled to relief. It is provided by article 865e, Vernon’s C. O. P., that before the suspension of sentence can be set aside in a given case, and sentence therein be pronounced against the accused, there must be shown a final subsequent conviction of the accused of some other felony. The judgment of the court in cause No. 9455, supra, was appealed from, and said cause is now pending in this court on such appeal. There had been no final conviction of appellant in any other felony case at the time his suspended sentence was set aside in the instant case, and for such reason the judgment of the trial court setting aside such suspended sentence and sentencing appellant must be set aside, and the judgment of said court as of date March 7, 1921, giving to appellant the benefit of the suspended sentence, will be reinstated. -

The judgment of the trial court sentencing appellant will he reversed, and the original judgment reinstated as above indicated, and, as reinstated, will be affirmed. 
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     