
    WALKER v. STATE.
    (No. 11002.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    State’s Rehearing Granted Oct. 26, 1927. Appellant’s Rehearing Denied Nov. 23, 1927.
    On State’s Motion for Rehearing.
    1. Criminal law <&wkey;982 — Evidence held not to afford reasonable support for. a finding for defendant on suspended sentence issue so as to require submission to jury.
    Where one convicted of automobile theft filed his application for a suspended sentence, evidence held not to afford reasonable support for a finding for the defendant on the suspended sentence issue so as to require submission to the jury.
    2. Criminal law &wkey;>982— Defendant has burden of showing himself entitled to suspended sentence.
    Defendant applying for a suspended sentence upon conviction has the burden of showing that he is entitled thereto by satisfying the jury that he has not previously been convicted of a felony in this or any other state.
    3. Criminal law &wkey;>982 — Proof that defendant has not been convicted of felony in county of residence held not to justify trial' court in submitting issue of suspended sentence.
    Where, upon conviction for automobile theft, the defendant filed his application for a suspended sentence, held, that proof that defendant had not been convicted of felony in the county where he lived would not justify the trial court in submitting to the jury the issue of a suspended sentence.
    4. Criminal law &wkey;>982 — That defendant has not been convicted of felony in county of residence will not, alone, justify jury in finding for him on suspended sentence issue.
    Where a defendant has been convicted and has filed his application for a suspended sentence, evidence, upon hearing of such issue, that he has not been convicted of a felony in the county of his residence will not, by itself, justify the jury in finding for him on the suspended sentence issue.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; • Geo. E. Hosey, Judge.
    Bernard Walker was convicted of automobile theft, and he appeals.
    Affirmed.
    Virgil R. Parker, of Port Worth, for appellant.
    Jesse E. Martin, Or. Dist. Atty., and Arthur L. Moore and Prank H. Rawlings, and Gal Estill, Asst. Or. Dist. Attys., all of Port Worth, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of automobile theft, and his punishment assessed at 2 years in the penitentiary.

The appellant’s defense was an alibi, and in connection therewith he filed an application for a suspended sentence.

The issues and facts in this case are the same as in the companion case (No. 11001) Charles Walker v. State, 299 S. W. 414, which was this day reversed by this court in an opinion written by Judge BAKER. What we have said in the companion case applies with equal force to the instant case.

The judgment' of the trial court is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On State’s Motion for Rehearing.

LATTIMORE, J.

In this case the state moves for a rehearing, urging that before the accused in any case is entitled to have the issue of suspended sentence submitted to the jury there must be enough evidence presented to fairly raise such issue and afford reasonable support to a finding upon same in favor of the accused, and that in this case the record makes no such showing. We have carefully examined the testimony upon this point.

Appellant’s aunt swore that she had known him all of his life, had had the care of raising him, and that at no time within 10 years next past had he been out of Port Worth as much as 6 months at any one time. Mr. Wall, deputy district clerk of Tarrant county, swore that he had examined the records of convictions for felonies in the district clerk’s office of Tarrant county as far back as 1919 and found no record of any felony conviction against appellant. This comprises the testimony relied on as showing appellant entitled to have the issue of suspended sentence submitted to the jury. Upon more mature consideration, we do not think the action of the trial court erroneous in refusing to submit this issue upon such showing. True, as said by us in cases cited in our original opinion, the right to a suspended sentence is a valuable one, and when the testimony reasonably supports such issue, it should go to the jury. In the instant case we observe that the mother of appellant was a witness; that the record shows that his people lived in Fort Worth; that his aunt was a witness also, but neither the mother, the aunt, nor any other witness affirmed that appellant had never been convicted oí a felony. Appellant did not tafee the witness stand. That the aunt affirmed that he had not been out of Port Worth as much as 6 months at any one time could not be given any weight at all as showing that he had not been convicted of a felony. Appellant was under 21 years of age. He could have committed a felony in any county in Texas, have pleaded guilty thereto, or been tried therefor, and have received a suspended sentence, all within 10 days, much less 6 months. The great city of Dallas lies immediately contiguous to Port Worth where appellant lived. 1-Ie could have committed a felony in Dallas and been indicted the next day, tried, and convicted, and given a suspended sentence within a week, and still his aunt told the truth about his' not being out of Tarrant county as much as 6 months at a time. We regard this testimony as amounting to nothing. This leaves in the record only the statement of the deputy district clerk of Tarrant county that the defendant had not been convicted of a felony in the county of the forum within 8 years prior to this trial.

We must not lose sight of the fact that the burden of showing himself entitled to a suspended sentence rests upon the accused; that is, that he must satisfy the jury that he has not been convicted of a felony in this or any other state prior to the instant trial. We are then remitted in this case to this proposition, viz., Does proof that the accused has not been convicted alone in the county in which he lives, of a felony, justify the trial court in submitting the issue, or would it justify the jury if such issue was submitted, in a finding in favor of the appellant thereon? We do not think so. If such had been the intention of the Legislature, we believe they would have so stated.

We see no reason in the world why appellant’s mother, his father, his aunt, or some of his associates who testified in the case in his behalf could not have been asked a direct question by the appellant as to whether he had theretofore been convicted of a felony, if he had been in fact, in good faith, relying upon this proposition to escape the results of conviction, or wished to meet the burden imposed on him of showing that he-had not been so convicted.

Believing we were in error in the original opinion in holding that the evidence required the submission of this issue to the jury, and that there was no error committed upon the trial of the case calling for a reversal, the state’s motion for rehearing will be granted, the judgment of reversal set aside, and the judgment now affirmed.

On Appellant’s Motion for Rehearing.

HAWKINS, J.

The state’s motion for rehearing having been granted and the judgment affirmed, appellant now files a motion for rehearing, among other things, insisting that the accomplice witness Stewart was not sufficiently corroborated. This is the only point we find it necessary to discuss.

This is a companion case to No. 11001, Charles Walker v. State, 299 S. W. 414, in which appellant’s motion for rehearing is this day overruled. Por the same reasons there stated, a like order is demanded in the present case.

Appellant’s motion for rehearing is overruled. 
      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     