
    PARKER v. STATE.
    (No. 6336.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.)
    1. Criminal law @=>714 — State’s attorney should not argue that defendant's application for suspended sentence should be considered upon issue of guilt.
    It was improper for the state’s attorney to argue that the fact that defendant had asked for a suspended sentence should be considered by jury on the issue of defendant’s guilt or innocence.
    
      2. Criminal law @=>730(4) — Refusal to instruct not to consider defendant’s application for suspended sentence, after prosecutor’s argument, held error.
    In a prosecution for manslaughter, where the state’s attorney, in argument to jury, told the jurors to consider the fact that defendant had asked for a suspended sentence as affecting his guilt or innocence, court’s refusal of request for instruction charging jurors not to consider such fact held error.
    Appeal from District Court, San Augustine County; Y. H. Stark, Judge.
    W. W. Parker was convicted of manslaughter, and he appeals.
    Reversed.
    E. T. Anderson, of San Augustine, and D. M. Short & Sons, of Center, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of San Augustine couhty of manslaughter, and his punishment fixed at two years in the penitentiary.

In his argument to the jury the state’s attorney told them that appellant had asked for a suspended sentence, and that they should consider such fact as affecting his guilt or innocence. This was manifestly improper. No such argument can be justified. The law gives to one accused of crime the right of suspended sentence under the terms of the statute, and goes so far as to require the trial court, when the accused has no counsel, to inform him of his right to make application for suspended sentence, and to appoint counsel to prepare and present said application for the defendant. The argument in question was promptly excepted to, and the court asked to instruct the jury not to consider same, which request was refused. This was error. Tamaya v. State, 230 S. W. 146.

Appellant asked for a new trial because of newly discovered evidence, attaching the affidavits of a number of witnesses. There are also other matters complained of; but, being of the opinion that the judgment should be reversed because of the errors mentioned, we omit further discussion.

A reversal is ordered.  