
    MONROE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.
    On Motion for Rehearing, May 28, 1913.)
    1. INTOXICATING LlQUOES (§ 205*) — OFFENSES —Indictment—Sufficiency.
    In view of Acts 30th Leg. 1st Called Sess. c. 8, providing that if no contest is filed it shall be conclusively presumed that a local option election is a valid one, an indictment charging the offense of pursuing the business of selling intoxicating liquors in prohibition territory, which averred that an election was held, and it was determined that the sale of liquor should •be prohibited, is sufficient, although not averring that the election held was a legal and valid one.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.*]
    On -Motion for Rehearing.
    2. Criminal Law (§ 1206*) — Punishment-Suspended Sentence.
    Where, after accused was convicted of following the business of selling intoxicating liquors in prohibition territory, the Legislature, during- the pendency of his appeal, passed the suspended sentence law (Acts 32d Leg; c. 44), which provided that if, a person on trial requests in writing that his general reputation be inquired into, and the proof shall show and the jury shall find that he has never before been convicted of a felony, and the jury shall recommend that the sentence be suspended, the court shall suspend the sentence, the accused is not entitled to any benefit from such act; it appearing that it did not expressly apply to offenders whose appeals were pending', and the act expressly insisted upon, a demand in writing prior to trial in order to give an" accused the benefit of its provisions, and did not give the trial judge any authority to suspend sentence upon his own motion.
    [Ed. Note, — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.*]
    3. Ceiminai, Law (§ 881) — Judgment— Sufficiency.
    In a prosecution for following the business of selling intoxicating liquors in prohibition territory, where the indictment charged the offense with particularity, a verdict of guilty as charged in the indictment, signed by the fore'man, together with the judgment and sentence thereon, are sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2093; Dec. Dig. § 881.*]
    4. Criminal Law (§ 1184*) — Appeal—Disposition.
    Under Code Cr. Proc. 3911, art. 938, providing that the Court of Criminal Appeals may reform and correct a judgment as the law and nature of the case require, a judgment which is too vague and indefinite may be reformed on appeal, where the indictment, charge of the court, and verdict are all a part of the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.*]
    Appeal from District Court, Williamson County; Charles A. Wilcox, Judge.
    Arthur Monroe was convicted of the offense of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Nunn & Love, of Georgetown, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in-Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of the offense of pursuing the business and occupation of selling intoxicating liquors in prohibition territory. There is no statement of facts nor bills of exceptions accompanying the record; ■ so, the only question presented that we can review is the motion to quash the indictment.

The first ground in the motion is that the indictment fails to allege that “a valid and legal election” was held. The indictment follows the usual and customary form approved by this court in this respect, that an election was held to determine whether or not the sale of intoxicating liquors should be prohibited, and at said election it was determined the sale should be prohibited, and the court declared the result of said election, entered an order to that effect, which order was duly published, and it was not necessary to state that the election so held was “a valid and legal one.” Acts 30th Leg. 1st Called Sess. c. 8, p. 447, which provides within what time said elections may be contested, and if no contest is filed it shall be ■conclusively presumed that said election was a valid one.

The other grounds are equally without merit; the indictment being drawn in terms frequently approved by tljis court.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of this term this case was affirmed, and motion for rehearing overruled ; but appellant came and represented he desired to present a new proposition of law, which would not only materially affect this case, but all cases pending in this court where the punishment assessed is less than five years in the penitentiary. We ordered the mandate withdrawn, and permitted the filing of the amended motion. It reads:

“(1) That the appellant was tried and convicted at the February term of the district court of Williamson county, Texas, A. D. 1912, and that he appealed Ms cause to this court, and while his appeal was pending in this court the Legislature of the state of Texas passed and the Governor approved the act known as the ‘suspended sentence law,’ and that by reason of the passage of the said law the appellant’s case should be reversed for the following reasons:
“(a) That the said law ameliorated and modified the penalty heretofore existing for the offense for which appellant stood charged.
“(b) That by substitution the said law repealed the penalty for the offense for which the appellant stood charged.
“(c) That the said law altered and changed the theretofore existing law in such a manner as to substantially affect the appellant’s rights.
“(d) That as shown by the affidavit of appellant, attached hereto and made a part hereof, the appellant elects to avail -himself of the benefits of the - said suspended sentence law.
“(e) That the record of this cause shows affirmatively that no sentence has been legally pronounced against him for the violation of any law.”

An able and exhaustive brief has been filed on propositions (a), (b), (c), and (d), and many authorities quoted and cited; but we are of the opinion that none of them sustain his contention. A number of them are cases holding that, even though a person has been convicted and the case pending on appeal, if the Legislature should repeal the law making such an act an offense, it would be the duty of this court to reverse and dismiss the cause. The suspended sentence law repeals no law of this state declaring what are penal offenses; consequently those cases have no application to the question here presented.

Appellant contends that the suspended sentence act (Acts 32d Leg. c. 44) ameliorates the penalty of certain offenses, by providing that under given conditions a defendant shall be permitted to go at large on his own recognizance, even though he has been adjudged guilty, and this contention may, in a measure, be said to be true: but it is only on given conditions that such ameliorated penalty, if it shall be so termed, operates and becomes effective in any given case. While not passing on the constitutionality of the suspended sentence act, as it is not necessary to a disposition of this case, and not raised by appellant in his motion, yet we are of the opinion that, if it is sustained, it will be upon the ground that it will be read into every penal law, as a part thereof (except those exempted by express terms), when the facts authorize it, just as the law of principals, accomplices, and accessories is read into and made a part of each statute, when the facts justify the court in so doing, and as applicable to this case it may be said the penal clause of the prohibition law should and will hereafter read as follows: “If any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any precinct in which the sale of intoxicating liquors has.been prohibited, he shall be punished by confinement in the penitentiary for not less than two nor more than five years: Provided that if the person on trial shall request in writing that his general reputation be inquired into, and the proof shall show and the jury shall find that he has never before been convicted of a felony in this state or any other state, and the jury in their verdict shall recommend that the sentence be suspended, the court shall suspend the sentence,” under conditions named in the act. 'We do not think, under the provisions of this act, the court has any authority or power to suspend sentencing the defendant unless the jury shall so recommend in their verdict, and the court has no power to refuse to do so if the jury in their verdict so recommends, only that he may set aside the entire verdict' and grant a new trial, if in the exercise of. his discretion he deems the ends of justice demand such action on his part

If this be a correct construction of the law, then it is only on condition that the person on trial, 6e/ore the trial begins and verdict of the jury is rendered, shall request in writing that his reputation be made an issue in the trial, that he may receive any benefit from the ameliorating statute. Many persons who do not bear a good reputation would hesitate to make the request, for fear that evidence of such reputation would enhance the punishment to be assessed, while those whose reputation has been above reproach, except in the instance for which they are then on trial, will gladly avail themselves of this provision, and this is the class of individuals for whom the law was framed and passed, in the hopes that they may be stayed from their erring course and good citizens made of them. The fact that a person makes such request will, in a measure, be taken by the jury as a confession of guilt, and yet the law requires that this be done before any person shall receive or be entitled to the benefits of the law, and even though a person be now placed on trial, after this law has become effective, and he neglects, fails, or refuses to file this request in writing until after the trial begins and verdict is rendered, he is not entitled to and»cannot receive the benefits of this law. The intent and purpose of the law are made plain, and the terms upon which one can receive the benefits of it are manifest, and it was never intended to have any effect on trials had before the passage of the law, any more than it was intended that a person tried after its passage could receive the benefits of the law after verdict rendered, by then making application. If there is one provision of the law made so plain that none can misunderstand it, it is that the only way for one to avail himself of its provisions is to make an application in writing before the trial begins and verdict is returned, and put in issue his reputation as a peaceable, law-abiding citizen, and then will he receive the benefit of it only on condition that the evidence shows that he has never before been convicted of a felony, and the jury trying him shall find that fact, and find that his reputation as a citizen is such that they in their judgment think the best interests of society and the state and the interest of the individual on trial will best be subserved by inflicting no punishment unless the person on trial shall commit another breach of the law, and they so recommend in their verdict.

It is true this law was not in force when appellant was tried, and others are now granted a privilege not granted to him; but it may be said there are hundreds of persons whose cases were and are pending on appeal, some of whom are now in the penitentiary, who were also denied this privilege. If the legislature had intended that a person could take advantage of this statute at any time before final disposition of the case, they would have so written the law; but, instead of doing so, they wrote into it the provision that this request in writing must be made before the trial begins and before the jury had returned its verdict, and under its terms the application of appellant made in this court comes too late and can avail him nothing. A similar question was so thoroughly discussed in Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595, by then Presiding Judge White, and the rule governing this character of case so clearly announced, it would be but superfluous for us to review the authorities, and we deem it only necessary to state that we adhere to the rule announced in that case, and think its sound reasoning and logic will convince any legal mind of its correctness, and that this law does not apply to cases tried before its enactment.

The other contention of appellant, that the judgment and sentence must define the offense with the same specificness and definiteness as the indictment or bail bond, is not sound. The indictment in specific terms defined the offense, the court in his charge correctly submitted this offense, and the jury in their verdict find, “We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at three years in the penitentiary,” being signed by the foreman. That the judgment and sentence on this verdict only referred to the offense in general terms, and did not specifically define it with that definiteness required in an indictment, furnishes no ground for reversal of the case. Under such circumstances, if it was too vague and indefinite, we would be authorized to reform and correct the judgment and sentence, under article 938, Code Or. Proc. 1911; the indictment, charge of the court, and verdict all being a part of the record in this case. But as the judgment and sentence, while not specifically defining the offense as specifically as is required in an indictment or bail bond, yet defines the offense in general terms sufficiently, no error is presented.

The motion for rehearing is overruled.  