
    DEHART v. STATE.
    (No. 7408.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.)
    Criminal law <&wkey;978 — Statute faking away right to suspended sentence not retroactive.
    Amendment of Suspended Sentence Law (Vernon’s Ann. Code Cr. Proc. 1916, art. 865b) by Acts 37th Leg. 1st Called Sess. (1921), c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a4), denying right to suspended sentence to offenders over 25 years of age, had no application to offenses committed before such amendment took effect.
    Appeal from District Court, Jasper County ; V. H. Stark, Judge.
    Ras Dehart was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Reversed and remanded.
    J. B. Forse, of Newton, and G. E. Richardson, of Jasper, for appellant
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquor ; punishment fixed at confinement in the penitentiary for a period of one year.

The date of the offense was December, 1920. Under the law in force at the time the offense is charged to have been committed, the' Suspended Sentence Law (article 865b, Vernon’s Ann. Code Cr. Proc. 1916) was applicable to the offense, although the alleged offender be above the age of 25 years. The appellant was above that age. He sought to avail himself of the privilege of having the jury pass upon his application for a suspension of his sentence. This was refused. It should have been accorded. The amendment of the law by chapter 61, Acts of the Thirty-Seventh Leg., 1st Cálled Sess. (1921), brought forward in Vernon’s Ann. Pen. Code Supp. 1922, art. 588⅜&4:, in which the right of suspended sentence was denied to offenders over the age of 25 years, could have no application to the pífense committed before that law took effect. To make it so operate would classify it as an ex post facto law. The subject is discussed at more length in Plachy v. State, 91 Tex. Cr. R. 405, 239 S. W. 980. The Assistant Attorney General concedes the error.

The judgment must be reversed and the cause remanded, and it is so ordered. 
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