
    HILL v. STATE.
    (No. 6679.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <&wkey;082— Refusal of suspended sentence held error.
    In a prosecution for larceny in which the jury found that defendant had never before been convicted of a felony and recommended a suspended sentence, refusing to suspend sentence on the ground that defendant had been convicted in another case subsequent to the present case, and sentencing defendant in accordance with the verdict, was error under Vernon’s Ann. Code Cr. Pfoe. 1916, art. 865c, providing that sentence shall he suspended on recommendation by the jury.
    2. Criminal law <&wkey;982 — To justify refusal to suspend sentence on recommendation of jury, there must be final conviction of defendant of another felony.
    Under Vernon’s Ann. Code Cr. Proa. 1916, art. 865e, to justify a refusal to suspend sentence recommended by a jury, there must be a final conviction of a defendant of another felo ny; a conviction from which an appeal is pending not being sufficient.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. _
    Hattie Hill was convicted of felony theft, and she appeals.
    Judgment reformed and affirmed.
    Stevens & Stevens, of Houston, for appellant.
    E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county of felony theft, and her punishment fixed at three years in the penitentiary.

In this case the appellant filed an application for a suspended sentence. The issue was submitted to the jury, and in their verdict they found that appellant had never before been convicted of a felony and recommended the suspension of such sentence. The judgment of the court as same appears in the record before us omits any adjudication of the right of appellant to a suspended sentence under said verdict and as recommended by the jury, and as same appears in the record adjudges this appellant guilty of the crime charged, and such judgment is followed by a sentence regularly pronounced upon appellant directing her confinement in the penitentiary for a period of three years. It is specifically directed in and by article 865c, Vernon’s O. 0. P., that in all cases sentence shall be suspended if the jury recommend in their verdict.

The only apparent reason for not giving to appellant the benefit of said suspended sentence and for not entering judgment suspending same appears to be that subsequent to the rendition of the verdict in the instant case and on the same day a jury returned into court another verdict of guilty against this appellant, and that the trial court evidently concluded from the fact of the rendition of said second verdict that the court should proceed in the instant case substantially as is directed in article 865e of Vernon’s O. O. P., and that the suspension of sentence recommended in the instant case should not be granted, but that the penalty imposed by the verdict should be pronounced against appellant in a sentence which should be made cumulative of the judgment rendered in said case in which the subsequent verdict of guilty was returned. The failure to give to appellant the benefit of the suspended sentence was unwarranted. The trial court had no right to refuse to enter judgment in accordance with the verdict of the jury because of the fact that on the same day as the return of the instant verdict and subsequent thereto another verdict of guilty was returned in a felony case, unless and until the judgment in said subsequent case became final. A motion for a new trial was made in said subsequent case under discussion and an appeal taken, and said case is now before this court. There must have been a final judgment in the later case to justify the trial court in invoking the rule of procedure laid down in said article 865e. Ex parte Lawson, 76 Tex. Cr. R. 419, 175 S. W. 698. The sentence imposed by order of the trial court will be set aside, and the judgment of conviction herein reformed, so that the order remanding appellant to jail to await the further orders of the trial court, which appears on page 465, Book 18, Minutes of the Criminal District Court of Harris County, Tex., will be eliminated, and the concluding paragraph of said judgment will be made to read as follows:

“It is further ordered, adjudged and decreed that the sentence of said Hattie Hill be 'suspended in accordance with the verdict of the jury herein and during the good behavior of said defendant, and that she be released on her own recognizance herein to await the further orders of this court.”

The other matters presented by appellant cannot be considered by us; the judgment as reformed not being final.

As above reformed, the judgment of the trial court will be affirmed. 
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