
    TONNAHILL v. STATE.
    (No. 6382.)
    (Court of Criminal Appeals of Texas.
    Oct. 19, 1921.)
    1. Criminal law <&wkey;982— Issue of suspended sentence must be submitted to jury, where there is evidence as to truth of plea.
    Where there was evidence as to truth of facts stated in defendant’s plea for a suspended sentence, the court was required, under Vernon’s Ann. Code Cr. Proc. 1916, art. 865b, to submit the issue of a suspended sentence to the jury, the court having no discretion in the matter.
    2. Criminal law <&wkey;>982 — Refusal to submit issue of suspended sentence held ground for reversal.
    Refusal to submit issue of suspended sentence to jury, notwithstanding evidence as to truth of plea seeking suspended sentence, held ground for reversal.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    C. A. Tonnahill was convicted of unlawfully possessing equipment for the manufacture of intoxicating liquor, and filed plea for suspended sentence, and on its denial to submit issue, he appeals.
    Reversed and remanded.
    Parmer & Parmer, of Waco, for appellant.
   MORROW, P. J.

The indictment charged the offense of unlawfully possessing equipment for the manufacture of intoxicating liquor.

In due time the appellant filed his plea, seeking a suspended sentence. Evidence that the plea was true was heard upon the trial. The court declined to submit the issue to the jury, and exception was reserved to the charge of the court upon that ground, and also to the refusal of the special charge properly presenting tlie matter. The statute (Vernon’s Ann. Oode Cr. Proc. 1916, art. 865b) made it obligatory upon the trial judge, under the facts stated, to instruct the jury to determine whether his sentence should he suspended. This conferred upon the appellant a right which he has asserted in the manner prescribed by the statute of the state, and brought forward for review by procedure that demands consideration by this court. The right is a valuable one, involving the privilege of having the jury- determine whether the appellant should be confined in the penitentiary or given his liberty under the terms of the Suspended Sentence Law. It was one which the court, with the evidence before it, had no discretion to deny. Carr v. State, 230 S. W. 405. Because of its denial, this court has no choice but to order the judgment of conviction reversed and the cause remanded for a new trial, which is accordingly done.  