
    CALLOWAY v. STATE.
    (No. 6782.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <§=>982 — Submission of question of suspended sentence to jury held error; “conviction of felony.”
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 865b-865d, 865f, providing for suspended sentence in case the accused has never before been convicted of a felony, where the accused had been convicted of a felony and was on liberty under a suspended sentence, submission of a question of suspended sentence to the jury was improper, since a judgment of guilty in a felony case accompanied by a suspension of sentence is a conviction of felony.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Convicted — Conviction.]
    2. Criminal law <§=992 — Failure to enter sentence according to verdict held error.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 853, subd. 10, requiring that the defendant be punished as has been determined by the jury where'the jury, has a right to assess the punishment after a verdict of. guilty recommending a suspended sentence, a sentence of imprisonment was error.
    3.Criminal law <®=l 184 — In proper case appellate court may reform judgment of trial court.
    The appellate court may reform the judgment of the trial court in a proper case.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    O. T. Calloway was convicted of theft, and appeals.
    Reversed and remanded.
    Grady Sturgeon, of Honey Grove, for appellant.
    Geo. P. Blackburn, Dist. Atty., of Paris, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Fannin county of theft of property of the value of more than $50, and his punishment fixed at five years in the penitentiary.

This appellant has appealed from a judgment of the court below sentencing him to five years in the penitentiary without the benefit of suspended sentence, which latter was recommended by the jury trying him. From the record we learn that in cause No. 9428 against this same appellant in the court below, at a former term of said court, appellant had been convicted of a felony, and his punishment fixed at five years in the penitentiary, and that upon recommendation of the jury said sentence was duly suspended. When the instant case, No. 9455 on the docket of said court, was called for trial at a subsequent term, appellant presented another application for suspended sentence, and the court below submitted said issue to the jury, and they in their verdict herein, in addition to assessing a penalty of five years in the penitentiary, recommended that sentence be suspended. The trial court refused to grant the said suspension, and on motion of the state struck out such recommendation of the jury and entered sentence directing the confinement of. the appellant in the penitentiary. From the judgment and sentence as entered an appeal was taken.

We think the trial court erred in submitting the issue of suspended sentence in this case at all. In our opinion as expressed in Hill v. State (No. 6678) 243 S. W. -, opinion this day handed down, we held the accused entitled to but one suspended sentence, and that a judgment of guilty in a felony case accompanied by a suspension of the sentence is a conviction of felony as that term is used in sections 1, 2, 3, and 5 of chapter 7 Acts Regular Session of Thirty-Third Legislature, said sections being now arti-clés 865b, 865c, 865d, and 865f of Vernon’s C. C. P.

It is also true, however, that the judgment of the trial court which fails to substantially conform to the verdict is erro-neons. Article 853, Vernon’s C. C. P. Subdivision 10 of said article seems in terms to require that the judgment reflect the punishment both in its duration and place, which has been fixed by the jury. In Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998, this court held that the trial court had no right to ignore that part of the. jury’s verdict granting suspension of sentence. .

In a proper case, as in the Baker Case, supra, and in Hill v. State, No. 6679, 240 S. W. 552, this day decided, this court might reform the judgment of the trial court; but, no right existing to a second suspended sentence, and it appearing that the rights of appellant may have been injuriously affected by the submission of the issue of suspended sentence to the jury in the instant case, for the error of the trial court in entering a judgment not in conformity with the verdict of the jury and in erroneously sentencing appellant, the judgment of the trial court will be reversed, and the cause remanded. 
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