
    CARTER v. STATE.
    (No. 5911.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1920.)
    Criminal law ⅞=>982 — Matter of suspended sentence need not be submitted where there was a previous conviction.
    Where trial took place in February, and accused sought to avail himself of Vernon’s Ann. Code Cr. Proc. 1916, art. 865B, permitting the jury to suspend sentence, the court did not err in declining to submit such matter to the jury, where in October preceding the trial accused had been convicted of a felony, and his punishment fixed at two years in the penitentiary, with a suspension of sentence; it not appearing that there was any appeal from the prior conviction.
    Appeal from District Court, Collin'County; Silas Hare, Judge.
    Clarence Carter was convicted of forgery, and appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for forgery. The trial took place in February, 1920. The appellant sought to avail himself of the statute permitting the jury to suspend the sentence. Vernon’s Ann. Code Cr. Proc. 1916, art. 865B. The court declined to submit that matter to the jury, for the reason that in October preceding the trial appellant' had been convicted of a felony, and his punishment fixed at two years’ confinement in the penitentiary, with a suspension of sentence. It does not appear that there is any appeal from this conviction, but that it stood subject to the provisions of the suspended sentence law. See articles 865D and 865E, C. C. P. The action of the trial judge is in accord with the construction given to the law by this court in Weatherford v. State, 73 Tex. Cr. R. 440, 166 S. W. 149, in which it was expressly held that one who was convicted of a felony in two cases upon the same day could not receive a suspended sentence. The case was referred to in Burnett v. State, 201 S. W. 409.

We approve the ruling of the trial court, and order the judgment affirmed. 
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