
    HOLDMAN v. STATE.
    (No. 7640.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.
    Rehearing Denied May 23, 1923.)
    Criminal law <&wkey;l 144(*/2> — In absence of showing in record, presumed on appeal, in support of judgment, that defendant was not of age for suspended sentence.
    In the absence of showing in the record that defendant at the time of his trial for violation of the liquor law was within the age of 25 years, so as.to be entitled to have presented to the jury a plea for a suspended sentence, it will be presumed that he was not within such age, in support of the denial of motion for new trial, because the court did not. pursuant to Vernon’s Ann. Code Or. Proc. 1916, art. 865b, inform him, he being without counsel, of his right to make application to have the jury suspend his sentence, and appoint counsel to prepare and present it.
    Appeal from District Court, Nacogdoches County; Spottswood H. Sanders, Special Judge.
    Felix Holdman was convicted of violating the liquor law, denied a new trial, and appeals.
    Affirmed.
    J. M. Marshall and S. M.' Adams, both of Nacogdoches, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J..

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The indictment is regular, and the evidence is sufficient to support the verdict.

In the brief and motion for new trial, one question is raised, namely: That the court failed to advise the appellant of his right to have a plea asking for a suspended sentence prepared and filed. Where one whose offense is within the purview of Vernon’s Ann. Code Or. Proc. 1916, art. 865b, relating to the suspended sentence, is without counsel, it is the duty of the court to inform him of his right to make an application to have the jury suspend his sentence, and “the court shall appoint counsel to prepare and present the same if desired, by the defendant.” In a case where there exists no legal impediment to the granting of the suspended sentence, it would doubtless he a serious error for the trial court to ignore this provision of the statute. In support of the judgment however, the presumption obtains that the court did not ignore it, and to overturn this presumption, the contrary must affirmatively appear upon appeal. Appellant was represented by counsel on the motion for new trial, but at the trial he was without counsel, and the court failed to advise him of the aforementioned right. The offense with which he was charged was not within the operation of the suspended sentence statute if the accused was, in fact, over 25 years of age. It is not shown by a bill of exceptions that he was under that age. The motion is not verified by affidavit and contains no recital touching the age of the appellant at the time of the trial. It should be made known to this court that he was under 25 years of age at the time of his trial; otherwise the suspended sentence law would have no application to him, and the action of the trial court deprived him of no right, and the granting of a new trial would serve no useful purpose. His age was a matter within his knowledge, and the record being without avermént or affidavit that he was not above the age of 25 years, we are constrained to hold that there was not error in refusing ‘the motion for new trial and to order an affirmance of the judgment, which is accordingly done.

On Motion for Rehearing.

Counsel for appellant insists that this court was in error in deciding that the presumption of regularity was in favor of the judgment of conviction unless the contrary affirmatively appear. There is a distinction between the presumption which operates in the trial court and that which operates on appeal. On the trial of the case, the presumptions are in favor of the appellant. He is presumed innocent until his guilt is established. On appeal, the presumption obtains that his conviction was regular and upon sufficient evidence unless the contrary is made to appear. In announcing this distinction, it is conceived that no new rule of law is asserted. The leading case cited by appellant (Martin v. State, 44 Tex. 172) was one in which, upon the facts, the proof was insufficient. This was ascertained on appeal by an examination of the facts which were brought up, and the remark was made with reference to the record that the appellate court, haying before it all the facts proved on the trial, would not presume there were other facts against the accused. This is the correct rule and one that is uniformly applied, but not better established than that which requires that on appeal the presumption of regularity obtains unless the record reveals the contrary. Among the cases asserting this rule are English v. State, 4 Tex. 125; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Farrar v. State, 5 Tex. App. 489; Carr v. State, 5 Tex. App. 153; Yanez v. State, 6 Tex. App. 429, 32 Am. Rep. 591; Handline v. State, 6 Tex. App. 347; Montgomery v. State 4 Tex. App. 140; Nash v. State, 2 Tex. App. 362; Escareno v. State, 16 Tex. App. 85; State v. Thompson, 18 Tex. 526; Johnson v. State, 14 Tex. App. 306; Bohannon v. State, 14 Tex. App. 272; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; Cardenas v. State, 58 Tex. Cr. R. 109, 124 S. W. 953. Statutory provisions are found on the subject in Code of Crim. Proc. arts. 929 and 938. See Vernon’s Tex. Crim. Stat. vol. 2, pp. 889 and 897; also, cases listed on pages 892 and 893.

The case of Johnson v. State, 14 Tex. App. 310, was one in which the record failed to show that before the sentence was pronounced, the accused was not asked whether he had anything to say. It was contended that inasmuch as the law required such inquiry to be made, its omission from the recital in the sentence was fatal. Judge Willson, in writing the opinion of the court, said:

“We think in such case we are required to presume that the trial court complied with the law, and asked the defendant the statutory question. If a ease should arise wherein a defendant had been refused by the court the privilege of the question, and the right to answer it in a legal manner, and such action of the court was presented to us by proper hill of exceptions, we would undoubtedly set aside the sentence, and accord to the defendant his legal right to he heard in bar thereof. But where such -a state of case is not presented, we will presume that the trial court has obeyed the directions of the law in pronouncing the sentence.”

So, in this case, if it appeared by the motion for new trial or by bill of exceptions properly verified that the accused was within the age which under any circumstances would entitle him to have presented to the jury a plea for a suspended sentence, this court would-not hesitate to reverse the judgment because upon such showing the judge the trial court refused a new trial. In the absence of such information in the record, however, it must be presumed that no such fact existed. of

The motion for rehearing is overruled. 
      ®s»For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes
     