
    BROWN v. STATE.
    (No. 10178.)
    (Court of Criminal Appeals of Texas.
    June 2, 1926.
    Rehearing Denied Jan. 12, 1927.)
    1. Criminal law &wkey;>982 — Defendant given suspended sentence, and before expiration of term convicted of felony in federal court, could be sentenced under state court judgment (Code Cr. Proc. 1925, art. 779; Acts 33d Leg. c. 7, §§ I, 2, 4).
    Defendant, given suspended sentence in state court could be sentenced under state court judgment where, before expiration of probationary term, he was convicted of felony in federal court, as Code Cr. Proc. 1925, art. 779, providing accused may have sentence pronounced on original judgment, if convicted of felony pending suspension of sentence, is not limited to felonies committed under laws of state, in view of.Acts 33d Leg. e. 7, §§ 1, 2, 4; suspended sentence being permitted under section 1 only in absence of conviction of felony in this or any other state.
    2. Statutes <&wkey;205 — Interpretation" of words used depends on entire statute.
    In construing particular words in statute, entire statute as enacted must be considered.
    3. Criminal law <&wkey;>982 — Suspended sentence may be conditioned on showing that accused had not been convicted of felony in this or any other state..
    Legislature could make grant of suspended sentence dependent upon proof that accused had not been convicted of felony in this or any other state.
    
      4. Statutes <&wkey;205 — Part of statute under review must be construed in harmony with entire statute.
    All parts of statute must be looked to, and such meaning must be given to any part under review as would harmonize that part with entire statute.
    On Motion for Rehearing.
    5. Criminal law <&wkey;982 — Court could recall suspension of sentence for conviction of felony in federal court from which writ of error had not been taken (Code Cr. Proc. 1925, art. 779).
    Where defendant was given suspended sentence for felony, court could, on defendant’s conviction of felony in federal court before expiration of term, recall suspension of sentence under Code Cr. Proc. 1926, art. 779, though accused had six months within which to apply for writ of error from federal court conviction, where no writ had been granted and no super-sedeas directed against execution of judgment; such judgment being final.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Joe Brown was convicted of a felony and given a suspended sentence. On his conviction of a felony in the United States District Court, the suspended sentence was set aside and defendant was sentenced in conformity with the judgment .of the state court, and he appeals.
    Affirmed.
    ‘Callaway, Dalton & Callaway, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of .Austin, and Robt. M. Byles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

This appeal presents an unusual question. Appellant was convicted of a felony in Dallas county and given a suspended sentence. Thereafter and before the expiration of the term given him by said verdict, he was convicted in the United States District Court at Dallas for an offense denominated as a felony under the federal statutes, and upon motion of Hon. Shelby Cox, district attorney at Dallas, thereafter made in, the case in which appellant was given suspension of sentence, same was set aside and appellant duly sentenced in conformity with the judgment in the state court, from which action of the trial judge' this appeal was taken.

Appellant asserts that the expression “any other felony,” as used in article 779, C. C. P. 1925, wherein it is provided that upon conviction of any other felony pending a suspension of. sentence, the accused may have sentence pronounced on the original judgment, mu$t be held by us to mean “any other conviction of felony under the laws of this state,” and to hold otherwise would be repugnant to the various clauses of our Constitution which he cites.

We deem a reference to the acts of our own Begislature, in creating the law granting to one tried for a felony a suspended sentence, is a sufficient answer to practically all the contentions of appellant. It is provided therein that upon pleading and proof that the accused has never been convicted of a felony “in this or any other state,” he may be accorded by the jury, if they so desire, a suspended sentence. What we have just mentioned is set forth in section 1, c. 7, Acts Regular Session, 33d Legislature. In section 2, Id., appears language having reference to the testimony to be offered, and what issues shall 6e submitted to the jury in case the suspended sentence is sought, and tlie language of said section 2 is “has ever before been convicted of a felony.” Also in section 4, Id., in reference to the revocation of the grant of a suspended sentence, it appears that the suspended sentence may be set aside as follows: “Upon the final conviction of the defendant of any other felony.”

Without attempting to follow appellant in all of his propositions and the reasoning of the numerous authorities cited in his able brief, we observe that these matters seem foreign to the case when viewed in what seems to us to be its proper light. In determining the proper construction to he put upon the words in section 4, “any other felony,” we must look to all the statute then enacted. We think the Legislature well within its power when it made the grant of a suspended sentence depend upon proof that the accused had not been convicted of a felony “in any other state,” and that it must have known, when it so wrote its will, that some matters are felonies in other states which are not in Texas. The framers of the law did not make the right to such suspension depend on whether the act of the accused. if committed in any other state, would be such as would be a felony under our law. The language used by them is plain and unambiguous. Proof of conviction of that which is a felony in any other state would deprive one on trial in this state of any right to a suspended sentence.

We are then called on to decide, not as to the power of the Legislature to deprive appellant of any .vested right, or whether he is called on to suffer .for an offense not made penal by the laws of this state, but merely to say whether in section 4 of the act under consideration, the words “any other felony” were intended by the Legislature to cover the same territory as is covered by their announcement in section 1, wherein it is expressly stated that the accused shall not be entitled to suspended sentence if it is shown that he has been convicted of a felony in any other state. We entertain no doubt as to’ the proper solution of this question. The express refusal of suspended sentence upon ■ a named condition, viz., conviction of a felony in any other state — being in the same Act as that which revokes the grant of such suspension upon proof of conviction of any felony — brings the matter within the rules of construction which require that all parts ' of a statute must be looked to, and that such -meaning must be given to any part under review which would harmonize that part with ■the whole statute. Endlich on Interpreta- . tion of Statutes, § 35; Lewis’ Sutherland 'Statutory Construction (2d Ed.) vol. 2, §§ 368-370. The grant of suspended sentence 'had as one of its objects the reformative effect of holding over thfe convict the conse- . quences of continued violations of the law. . Certainly it was intended that a felony violation in any other state would have effect upon his right to suspended sentence in the first instance, and we see no reason for thinking that the revocation of the grant should not be for the same reason. In other words, it seems to us that the revocation would seem rightly to rest on the doing of the same things afterward which, if in existence before the trial, would have defeated the grant in the first instance, and that the Legislature intended this in what they said.

There being no doubt in our minds of the fact that appellant was rightly convicted in this state and given a suspended sentence, and of the further fact that before the expiration of the term of years given him by the judgment in said cause, he was finally convicted of a felony in the United States -court, and that proper showing of this fact was made to the court wherein the sentence had been suspended, the action of the trial judge herein in setting aside the suspension and sentencing appellant as under the judgment, was in our opinion proper.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In the motion for rehearing appellant insists upon his original proposition that the language used by the Legislature to the effect that one who had been granted a suspended sentence could be deprived- of its benefits if he was subsequently convicted of a felony means the conviction of a felony in this state only. In support of this proposition he cites cases holding that witnesses to be incompetent to testify because of conviction for felony offenses must be shown to have been convicted of felonies in the state where called as a witness. We think it unnecessary to discuss such authorities, believing they do not apply under the wording of the statute being considered. Amaya v. State, 87 Tex. Cr. R. 160, 220 S. W. 98, contains some views of this court on an analogous question. Construing the law as a whole, we are constrained to adhere to the conclusion announced in our original opinion. We cannot bring ourselves ‘to believe that the Legislature intended to.deprive one who had been convicted of a felony in another state of a suspended sentence in the first instance and at the same time permit him to retain that benefit if he should subsequently be convicted of a felony in some other jurisdiction.

Appellant asserts in his motion for rehearing that the trial court had no right - to recall the suspension of sentence in this-instance because the judgment in the federal court was not a final judgment. As we understand it, he bases this assertion upon the provision of the federal statute giving one convicted six months in which to apply for a writ of error. While this may be true, it does not follow by any means that the judgment was not final. In the absence of information that a writ of error had been granted and a supersedeas directed ¿gainst the execution of the judgment, we understand that the judgment of conviction in the federal court is regarded as final. U. S. v. Whittier, 11 Biss. 356, 13 F. 534; Hudson v. Parker, 156 U. S. 277, 15 S. Ct. 450, 39 L. Ed. 425; In re McKenzie, 180 U. S. 535, 21 S. Ct. 468, 45 L. Ed. 657; In re Claasen, 140 U. S. 200, 11 S. Ct. 735, 35 L. Ed. 409; 17 Corpus Juris. § 3380.

The motion for rehearing is overruled. 
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