
    TAMAYA v. STATE.
    (No. 6219.)
    (Court of Criminal Appeals of Texas.
    April 20, 1921.)
    1. Criminal law &wkey;>l056(l), 1090(8) — Errors in admission of evidence not reviewed, in absence of bills of exception; charge not excepted to not reviewable.
    Whei’e no exceptions were. taken to the charge, and there were no bills of exception to the introduction of any evidence, questions raised by the motion for new trial, presenting error in the charge or the reception of evidence, cannot be reviewed.
    2. Criminal law &wkey;>7l4 — Reference by prosecutor to defendant’s application for suspended sentence reversible error.
    In a prosecution for assault to murder, where the case was submitted solely on the question of aggravated assault, a statement by the prosecutor that, if defendant had not been guilty, his attorney would not have filed an application for a suspended sentence, is reversible error, as the court failed to instruct the jury to disregard the statement, for, in case of a felony where defendant applies for suspended sentence, that fact cannot be argued as guilty circumstance, and when the question of felony was passed out of the case by elimination of the charge of assault to murder, the question of suspended sentence was also eliminated.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Juan Tamaya ,was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was placed upon trial in the Thirty-Seventh district court of Bexar county upon an indictment charging him with assault to murder, but after the evidence was introduced the question of assault to murder appears to have been eliminated either at the request of the district attorney, or upon his own motion by the trial court, and the case was submitted to the jury solely upon the question of an aggravated assault.

No exceptions were taken to the charge of the court below, nor does there appear any bills of exception to the introduction of any evidence, and therefore the court cannot consider tlie questions raised in the motion for new trial, presenting errors either in the charge or the reception of evidence.

There is hut one bill of exceptions in the record. It appears therefrom that during the trial and in his closing argument the district attorney made the following statement to the jury:

“Gentlemen of the jury, if this defendant had not been guilty his attorney would not have filed an application for a suspended sentence; before the trial he filed an application for suspended sentence, which shows that he is guilty, and that is the way they all do.”.

To this remark appellant excepted, and requested, the court to instruct the jury not to consider same. There appears no written instruction on behalf of the appellant, telling the jury that they should not consider such statement. In the opinion of this court said statement was so entirely unsupported by this record and of such an injurious character to the accused as to justify the reversal of this case because of same. This court has held that when the case on trial is a felony and an application has been duly filed for a suspended sentence, that remarks such as are here complained of are improper, inasmuch as the law authorizes the making of an application for a suspended sentence, and said fact is not to be taken or argued by the state, as a guilty circumstance. In the instant case the record discloses nowhere any application for. a suspended sentence, and as far as we are informed by said record the' statement of the district attorney was wholly without foundation, and was a statement of a substantive and very injurious fact to the jury, which was outside the record. If there had been filed an application for a suspended sentence, when the question of felony passed out by eliminating assault to murder, the question of suspended sentence also passed out, and was no longer an issue to be argued before the jury. Appellant was not then entitled to any benefit thereof, nor was it a proper matter for the state to discuss.

For the error mentioned, the judgment of the trial court is reversed, and the cause remanded. 
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