
    ROSENTHAL v. STATE.
    (No. 8449.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied June 4, 1924.)
    1. Criminal law <®=»978 — Act denying suspended sentence to defendant over 25, violating liquor law, valid.
    Acts 37th Leg., 1st Called Sess. (1921) c. 61 (Yernon’s Ann. Pen. Code Supp. 1922, art. 588%et seq.), in denying benefit of suspended sentence to persons over 25 years old convicted of violating the liquor law, is not unconstitutional.
    On Motion for Rehearing.
    2. Statutes <S=»I41 (I)— Suspended sentence law not attempted to be amended by reference to title only.
    Acts 37th Leg., 1st Called Sess. (1921) c. 61 (Vernon’s Ann Pen. Code Supp. 1922, art. 588% et seq.), denying to persons convicted of violating liquor law, who were over 25 years old, benefit of suspended sentence, held not to attempt to amend suspended sentence' law by reference to title only.
    Appeal from District Court, Milam County ; John Watson, Judge.
    H. Rosenthal was convicted of violating the liquor law, and appeals.
    Affirmed.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Possessed of a search warrant, officers searched the home of the appellant. Several gallons of whisky and also apparatus for making intoxicating liquors were found so circumstantiated as to support his conviction.

Appellant was 49 years of age, and the court did not err in refusing to submit to the jury the issue of the suspended sentence. An interesting presentation of the validity of the legislation limiting the privilege of the jury to Suspend the sentence to persons not over -25 years of age is found in the argument and brief of counsel. However, we are constrained to adhere to the conclusion favoring the validity of that law expressed in Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In support of his re'newed complaint that we erred in holding that the law denying the benefit of suspended sentence to one over 25 years of age convicted of violating the liqtíor law, was constitutional, appellant cites Henderson v. City of Galveston, 102 Tex. 163, 114 S. W. 108. We Rave examined said authority closely, and also the authorities cited by it, and deem none of them to have application. Said authorities are upon the proposition that a law cannot be amended by reference to its title, but that the amendatory act must set out substantially the law as amended. Nothing of this kind appears in chapter 61, Acts First Called Session of the 37th Legislature (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), in which was contained the law denying to persons convicted of violations of the liquor law who were over 25 years of age the benefit of suspended sentence.

Believing that the matter was correctly decided in the original opinion, the motion for rehearing will be overruled. 
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