
    ONSTOTT v. STATE.
    (No. 3266.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Criminal Law (§ 396) — Evidence ADMISSIBLE BY REASON OE ADMISSION OE SIMILAR Evidence.
    On a criminal trial, it was not error to admit evidence respecting a matter which accused had injected into the case on cross-examination of a witness,, and concerning which he ■had voluntarily testified on his own direct examination.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    2. Criminal Law (§ 342) —Evidence —Rebuttal.
    On a trial for false swearing in connection with the obtaining of a license, where accused filed a plea for a suspended sentence and testified as to his reasons for not delivering a license which he had previously obtained for the same parties, it was not error to permit the state to show that such license was not delivered for a different reason.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 773, 774; Dec. Dig. § 342.]
    3. Criminal Law (§ 797) — Instructions — Suspension oe Sentence.
    Where, on a criminal trial, accused filed a plea for a suspended sentence, but the court failed to instruct in regard thereto, except in giving the form of verdict, and refused a special charge to disregard the statement of the district attorney, in his argument,_ that the jury could not recommend a suspension of sentence because of the lack of proof as to accused’s good reputation, the conviction would be reversed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1935-1937; Dec. Dig. § 797.]
    
      4. CRIMINAL Raw (§ 885) — Suspension oe Sentence — Power oe Jury.
    Though, under the statute authorizing the suspension of sentences, evidence as to accused’s previous reputation is admissible to assist the jury in determining whether they will suspend the sentence, a finding that his previous reputation was not good does not prevent them from recommending a suspension of sentence, they being authorized to make such recommendation, unless accused has previously been convicted of a felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    Bert Onstott was convicted of false swearing, and he appeals.
    Reversed and remanded.
    J. R. Stubblefield, of Eastland, and Hickman & Bateman, of Dublin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For otiier oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of false swearing, and his punishment assessed at two years’ confinement in the state penitentiary.

The evidence amply supports the verdict of guilty. The bills of exceptions in regard to the evidence adduced about appellant having, prior to the commission of this offense, obtained license for the same parties in McLennan county, present no error, inasmuch as the defendant on cross-examination of the first witness injected this issue in the case, and then, when he took thé stand in his own behalf, in his direct examination, went voluntarily into this matter fully. The evidence offered by the state in rebuttal, and to which his objections go, was admissible as showing that he had not refused to deliver the first license for the reasons stated by him, but because he was not paid the amount demanded. He had placed in the case the issue of suspended sentence; and the plea he had put up in his testimony that he had not delivered the first license, because he had learned that the father of the girl objected, and would not do so, and that he had been misled into believing that the father did not object, etc., certainly rendered the testimony offered by the state admissible on this issue.

However, before the beginning of the trial, appellant filed a plea asking that, in case he was convicted, his sentence be suspended, alleging that he had never before been convicted of a felony. The court in his charge nowhere mentioned this plea, nor instructed the jury in regard thereto, other than in giving the form of the verdict that they should render, and appellant objected to the charge because “the same was incomplete and insufficient, and because it did not properly submit to the jury the law with reference to the suspension of sentence.” This objection was most too general, and we would not feel authorized to reverse the case on account of so general an exception to the charge, if in connection with other bills in the record the error was not made so manifest In another bill it is shown that:

“In the closing argument of the district attorney he used the following language, in substance : ‘Gentlemen of the jury: Section 2 of the act of the Legislature approved February 11, 1913, providing for a suspension of sentence provides as follows: “The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever before been convicted of a felony.” Under this law, gentlemen of the jury, you cannot recommend to the court that the sentence be suspended, because it has not been shown that the general reputation of the defendant in the community in which he lived was good.’ This argument was promptly excepted to, and the appellant asked that the following special charge be given, which was by the court refused: ‘Gentlemen of the jury, you are instructed to disregard that portion of the speech of the district attorney, John J. Hiner, wherein he stated that under the law they could not recommend that the court suspend sentence unless they (the jury) find that the defendant, Bert Onstott, had a good reputation in the community where he resided.’ ”

The court had not instructed the jury as to the law regarding a suspension of sentence in his charge, and permitted the district attorney to incorrectly state the law in regard thereto in his argument, and, when requested to withdraw such incorrect construction of the law, refused to do so. Where one has filed an application for a suspension of sentence, there is but one prerequisite finding that the jury must make, and that is that he has not theretofore been convicted of a felony in this or any other state, before they are debarred the privilege of recommending a suspension of sentence if they see proper to do so. If the appellant, on trial, has theretofore been convicted of a felony, no suspension can be made under the law. But this is not true as regards his prior general reputation. Evidence as to his previous reputation is admissible under the law, to assist the jury in determining whether they will or will not suspend the sentence. A jury might believe that his previous reputation was not good, and yet there might be mitigating circumstances in the case, and the jury determine, on account thereof, to recommend the suspending of the sentence. The district attorney incorrectly informed the jury that, if they found his previous reputation was not good, they could not suspend the sentence. This is not the law.

A suspension of sentence of a term of years in the penitentiary is a valuable right, and where one has never before been convicted of a felony and as appellant files this plea, the trial court should carefully guard this right in having the plea properly presented to the jury. It is true appellant received the lowest penalty authorized under the law; but who can say that, if the district attorney had not read this statute, and informed the jury that, if they found that appellant’s prior reputation was not good, they could, not suspend, the sentence, they would not have recommended a suspension of sentence. This, too, where the court, in his charge to the jury, had given them no instructions in regard to the matter. As before said, evidence of prior reputation is admissible to enable the jury to determine whether they will or will not recommend a suspension of sentence, if they find he has not theretofore been convicted of a felony; but if they should find adversely to one on that issue, they are authorized by the law to recommend a suspension if they should deem it proper to do so.

Because this matter was not properly presented to the jury in the court’s charge, and the district attorney was permitted to incorrectly state the law to the jury in his argument, which the court refused to withdraw from the jury, it • will necessitate a reversal of the case.

Reversed and remanded.  