
    BROWN et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Criminal Law (§ 885*) — Sentence — Suspended Sentence.
    Where the jury found that the present conviction of theft was accused’s first offense and recommended suspension of sentence, the trial court could not sentence accused to the penitentiary but must release him upon such recognizance as is provided by Acts 33d Leg. e. 7.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.*]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Roy Brown and another were convicted of theft, and, from a judgment sentencing them to the penitentiary they appeal.
    Remanded, with instructions.
    C. E. 'Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

In this case the appellants were prosecuted and convicted for theft and their punishment assessed at five years’ confinement in the penitentiary. The jury, however, in their verdict, under proper instructions from the court, find “that the defendants have never heretofore been convicted of a felony in this state or in any other state, and recommend a suspension of sentence by the court.” The court, however, ignored this portion of the verdict of the jury and sentenced them to the penitentiary. Recently in the case of Baker v. State, 158 S. W. 998, we had this question before us and held the court had no authority to pass sentence upon such a verdict under the law of this state. The sentence is a nullity because in violation of the statute, and this cause is remanded, with instructions to release the prisoners upon recognizance as is provided by chapter 7 of the Acts of the Thirty-Third Legislature. ⅜

Remanded, with instructions.  