
    COLEMAN v. STATE.
    (No. 4028.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Criminal Law <S=^982 — Suspension of Sentence — Question for Jury.
    Under the suspended sentence statute, providing that no one can have his sentence suspended if he has theretofore been convicted of a felony, and that the jury must first find from the evidence whether the accused has ever been convicted of a felony before they can consider the plea for a suspended sentence, the jury’s finding that he has been convicted of a felony precludes further inquiry ; but, if they find that, he has not been convicted of a felony, it is for them to determine whether or not the evidence justifies a suspension of the sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2500; Dec. Dig. <§=9S2.]
    2. Criminal Law <§=1171(1) — Harmless Error-Remark ox District Attorney.
    The remark of the district attorney on the question of the suspension of the sentence that some people blamed him for being too easy, and that, if the jury turned the defendant loose, and they heard any criticism on account of the sentence being suspended, he wanted them to tell that the jury did it, was not reversible error, where, under the plea of g'uilty and the evidence adduced, no different verdict could be reached at another trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3127; Dec. Dig. <§=1171(1).]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    J. B. Coleman was convicted of forgery, and he appeals.
    Affirmed.
    Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged with forgery; he entered a plea of guilty, and asked that his sentence be suspended. The jury assessed his punishment at two years’ confinement in the state penitentiary, and refused to suspend the sentence.

Appellant contends that the court erred in leaving it to the jury to decide whether or not they would suspend the sentence; his contention being that the only question the court should have submitted to the jury was whether or not he had ever before been convicted of a felony, and, if they found he had not, a suspension of the sentence followed as a matter of law. This is not a correct construction of the statute. The law in pla'in terms provides that no man can have his sentence suspended if he has theretofore been convicted of a felony, and the ■ jury must first find whether or not, under the evidence, the person on trial has ever been convicted of a felony before they can consider the plea for a suspended sentence. If the jury finds that the person on trial has theretofore been convicted of a felony, no further inquiry can be made. If they find that he has not been convicted of felony, then they should consider and determine whether or not the evidence, in their opinion, justifies a suspension of the sentence. This is a question for the jury to determine, and not for the court, and the court did not err in submitting that question to the jury.

The only other bill in the record complains of the remarks of the district attorney on the questiomof suspension of the sentence. The district attorney said “some people blamed him for being too easy; that, if the jury turned this defendant loose, and they heard any criticism on account of the sentence being suspended, he wanted them 'to tell that they, the jury, did it.” Under the plea of guilty, and evidence adduced in this case, we do not think such remarks would authorize a reversal of the case. No other or different verdict, under his plea of guilty, could or would be arrived at on another trial; he having been given the lowest penalty.

The judgment is affirmed. 
      @=»Eor other cates see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     