
    COON v. STATE.
    (No. 8460.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.)
    1. Criminal law (§^200(4) — When prior conviction bars prosecution based on same act.
    If charges of “transportation” of liquor and “possession for purposes of sale” were both based on the same criminal act, former conviction or acquittal in former prosecution for one of such charges would bar prosecution for the other charge.
    2. Criminal law &wkey;>l87 — Judgment'suspending sentence held to support plea of former conviction.
    Judgment granting accused benefit of Suspended Sentence Law pursuant to Yernon’s Ann. 'Code Cr. Proc. 1916, art. 865b, and Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 5S8!4a4), upon conviction, helé a final judgment which would support a plea of former conviction.
    Appeal from District Court,'Uvalde County; R. H. Burney, Judge. ' >
    
      Donna Coon was convicted of possessing intoxicating*liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    D. H. Jones and G. B. Fenley, both or 'Uvalde, for appellant,
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant was charged with the' possession of intoxicating liquor for the purpose of sale, the offense being alleged as of date October 5, 1923. Upon conviction, punishment was assessed at confinement in the penitentiary for one year.

Appellant interposed a plea of former conviction, alleging that he had theretofore been indicted for. the transportation of intoxicating liquor on said 5th day of October, 1923, had been tried thereon and legally convicted, and upon application and proof that he was under 25 years of age his sentence had been suspended. A copy of the former indictment, judgment of the court, and order releasing him upon his personal recognizance under the suspended sentence law were made a part of said plea; it was further alleged therein that the offense of which appellant was so convicted and the offense charged against him in the present indictment were one and the same transaction and offense, and not another and different transaction and offense. The state, through her district attorney, filed exceptions to appellant’s plea on the ground: First, that the plea itself showed that the sentence in the former cause was suspended, and that therefore no final judgment had resulted, and that the proceedings in that cause would not support appellant’s plea of, former conviction; second, because the plea did not show that the former prosecution was based upon the same offense, he being therein charged with the “transportation” of intoxicating liquor, and in the present case charged with “possession of intoxicating liquor for the purpose of' sale,” and that they were different offenses, although growing out of the same transaction. The state’s exceptions were sustained, appellant’s plea stricken out, not permitted to be read to 'the jury, nor any evidence admitted thereon. After this action of the court appellant then filed a plea of former jeopardy in bar of the present prosecution, setting up therein identically the same matters as were contained in his plea of former conviction. 'The state excepted to the plea of former jeopardy for the same reasons that were urged to the plea of former convictionthe plea of former jeopardy was likewise stricken from the record, not permitted to be read to the jury, nor any evidence heard thereon.

The state’s contention is not sound that, because in one indictment the offense charged was “transportation,” and in the other “possession for purpose of sale,” therefore different offenses were necessarily charged. If the state relied upon the same.criminal act in both cases, two convictions could not legally be obtained. Both offen’ses could be charged in the same indictment in different-counts, and a conviction had upon either one or the other, but the state could carve but once; it would be otherwise if the two offenses charged were based upon depárate criminal acts. Whether this was true would necessarily depend upon the evidence offered in support of the plea, and in refusing to entertain the plea upon the ground that uijon its face it disclosed different offenses the court was in error. The evidence should have been received upon the issue and the question submitted to the jury under appropriate instructions unless the first ground of the exceptions to the plea is maintainable. Plunk v. State (Tex. Cr. App.) 256 S. W. 922; Colter v. State, 94 Tex. Cr. R. 96, 252 S. W. 168; Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165; Simco v. State, 9 Tex. App. 346; Wright v. State, 17 Tex. App. 158.

Was the judgment granting appellant the 'benefit of the “Suspended Sentence Law” upon conviction under the first indictment such a judgment as would support a plea of former conviction? We are not unmindful of the rule that a conviction to be available in bar of another prosecution for the same offense must be a “final conviction” (see Dupree v. State, 56 Tex. Cr. R. 562, 120 S. W. 871, 23 L. R. A. [N. S.] 596, 133 Am. St. Rep. 998, and authorities therein cited; also Harvey v. State, 57 Tex. Cr. R. 5, 121 S. W. 501, 136 Am. St. Rep. 971; Phillips v. State, 73 Tex. Cr. R. 317, 164 S. W. 1004; other cases to the same effect will be found "collated under section 630, Branch’s Ann. P. C.) in the sense that no appeal is pending therefrom, but no appeal is allowed where a sentence is suspended at a 'defendant’s request. Bierman v. State, 73 Tex. Cr. R. 284, 164 S. W. 840. We are not advised of it if this court has ever heretofore been called upon to discuss the exact question now before us. In Hill v. State, 92 Tex. Cr. R. 312, 243 S. W. 982, it was held that the term “conviction of a felony” as used in the Suspended Sentence Law (article 865b, Vernon’s Ann: Code Cr. Proc. 1916) included a conviction in which the sentence was suspended. It is true the conviction is not final in the. sense that the state can enforce punishment by confinement in the. penitentiary, but it is final in that the state is not permitted to take any further action in the - matter except upon a subsequent conviction for another felony. All other provisions of the Suspended Sentence Law as they relate to any further action after the conviction and suspension of sentence -is for the benefit of accused, and must come upon his motion after the period of suspension has terminated. The application of the law which prevents a subsequent prosecution for the same offense where there has been a former conviction necessarily leads to construing a conviction with a suspended sentence as “final” in the sense that it ,will support a plea of former conviction. In this respect it may be regarded as an exception to^the general rule. The unsoundness. of the proposition contended for by the state in the lower court will be apparent from an illustration: A. and B. are jointly indicted and jointly tried for “transporting” intoxicating liquor. Both are convicted. A. is under 25 years of age, therefore entitled to (Acts 37th Leg. 1st Called Sess. c. 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 58814a4]), and does ask for, and receives, a suspended' sentence of one year. B. is over 25 years of age, therefore not entitled to a suspended sentence, and is condenined to one year in the penitentiary. They are again jointly indicted, and put upon trial for the same act, but this time charged, with “possessing for the purpose of sale.” Both interpose pleas of former conviction. B.’s plea is sustained because his former conviction is final. A.’s plea is overruled because his former conviction is not final by reason of the suspension of his sentence. He cannot again ask that his sentence be suspended, for the law forbids it because he is already under conviction for a felony, and he is convicted under the second indictment, thereby rendering him liable to have the suspension in the first case set aside, and sentence passed upon him in the first case as well as in the last, thereby suffering a double penalty and destroying in this indirect manner the purpose and effect of the Suspended Sentence Law. We think the learned trial judge fell into error in striking out the plea of former conviction. Evidence thereon should have been received, and if undisputed that both prosecutions were based upon the same criminal act the jury should have been directed to find for appellant upon the plea, and if an issue was raised relative to the question it should have been, submitted to the jury under proper instructions.

The judgment is reversed,' and the cause remanded. 
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