
    THOMAS v. STATE.
    (No. 5730.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Criminal law <&wkey;1023(9) — No appeal on SUSPENSION OP SENTENCE, AS THERE IS NO “PINAL JUDGMENT.”
    There is no right of appeal from a conviction if suspended sentence is awarded because of the want of a “final judgment,” which is the sentence pronounced by the court upon the verdict.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    2. Criminal law <&wkey;10S6(13) — In absence OP SENTENCE APPEAL DISMISSED.
    In the absence of 'any sentence contained in the record, appeal from conviction must be dismissed.
    Appeal from District Court, Ft. Bend County; M. S. Munson, Judge.
    T. Thomas was convicted of rape, and he appeals.
    Appeal dismissed.
    
      Stevens & Stevens, of Houston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The record, before us contains the verdict of the jury allotting 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 viewpoint 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. 
      &wkey;»Por other cases- see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     