
    W. W. Parker v. The State.
    No. 6336.
    Decided June 15, 1921.
    1-—Manslaughter—Argument of Counsel—Suspended Sentence.
    Where, upon trial of murder and a conviction of manslaughter, State’s counsel, in his argument to the jury, told them that defendant had asked for a suspended sentence and that they should consider such fact as affecting his guilt or innocence, the same was reversible error. Following Tamaya v. State, 230 S. W. Rep., 146.
    
      2.—Same—Newly Discovered Evidence—Practice on Appeal.
    Where the judgment is reversed and the cause remanded, for other reasons, the question of newly discovered evidence, etc., need not be considered on appeal.
    Appeal from the District Court of San Augustine. Tried below before the Honorable V. H. Stark.
    Appeal from a conviction of manslaughter; penalty, two years’ imprisonment in the penitentiary.
    The opinion states the case.
    
      H. B. Short and E. T. Anderson, for appellant.
    
      R. H. Hamilton, Assistant Attorney General, for the State.
   LATTIMORE, Judge.

Appellant was convicted in the District Court of San Augustine County of manslaughter, and his punishment fixed at two years in the penitentiary.

In his argument to the jury the State’s attorney told them that appellant had asked for a suspended sentence, and that they should consider such fact as affecting his guilt or innocence. This was manifestly improper. No such argument can be justified. The law gives to one accused of crime the right of suspended sentence under the terms of the statute, and goes so far as to require the trial court, when the accused has no counsel, to inform him of his right to make application for suspended sentence, and to appoint counsel to prepare and present said application for the defendant. The argument in question was promptly excepted to, and the court asked to instruct the jury not to consider same, which request was refused. This was error. Tamaya v. State, 230 S. W. Rep., 146.

Appellant asked for a new trial because of newly discovered evidence, attaching the affidavits of a number of witnesses. There are also other matters complained of, but being of the opinion that the judgment should be reversed because of the errors mentioned, we omit further discussion. A reversal is ordered.

Reversed and remanded.  