
    HAYNES v. STATE.
    (No. 11000.)
    Court of Criminal Appeals of Texas.
    Oct. 19, 1927.
    1. Criminal law &wkey;>l00l — '“Present,” in statute relating to application for suspension of sentence, means to lay before judge, magistrate, or governing body for consideration (Code Cr. Proc. 1825, art. 776).
    Term .“present,” as used in Code Cr. Proc. 1925, art. 776, relating to application for suspension of sentence, means to lay before judge, magistrate, or governing body for action or consideration; submit as a petition or remonstrance for a decision or settlement to proper authorities.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Present— Presented — Presentation.]
    2. Criminal law &wkey;>641(3) — That there was. no attorney in court did not relieve court of duty of appointing attorney to present accused’s application for suspension of sentence (Code Cr. Proc. 1925; art. 776).
    Where accused had no counsel to represent him, fact that there was no attorney in court when accused’s case went to trial did not relieve court of duty of complying with provisions of Code Cr. Proc. 1925, art. 776, relating to appointing counsel to prepare and present application for suspension of sentence to jury.
    3. Criminal law <&wkey;>l 16614(1) — Accused having no counsel to represent him, failure to appoint counsel to present application for suspension of sentence held error (Code Cr. Proc. 1925, arts. 776, 778).
    Where accused, in prosecution for assault with intent to commit murder, had no counsel representing him, and there was no attorney in court when his case went to trial, and court prepared his application for suspended sentence, and accused signed it, but declined to ask witness proper questions for submission of question to jury under Code Cr. Proc. 1925, art. 778, and court did not submit question of suspension of sentence to jury, court’s action in overlooking article 776, providing for appointment of counsel to prepare and present application for suspension of sentence, held reversible error, since accused had right to prove good reputation, so that jury could determine whether they should recommend suspension of sentence.
    Commissioners’ Decision.
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    H. Haynes was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Adams & Hamilton, of Jasper, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder; the punishment confinement in the penitentiary for two years.

Appellant filed his application for a suspended sentence. He had no counsel to represent him, and the court failed to appoint an attorney to prepare and present his application for a suspended sentence. After he was convicted, appellant secured counsel, and seasonably presented his "motion for a new trial, which was by the court overruled. He now presents for our consideration his bill of exception, wherein he complains of the action of the trial court in failing to appoint an attorney to file and present his application for a suspended sentence. The court has qualified the bill of exception as follows:

“There was not an attorney in court when defendant’s ease went to trial, and the court prepared defendant’s application for a suspended sentence, had the district clerk explain it to defendant got his signature to it and filed it for him, then during the taking of the testimony the defendant placed his wife upon the witness stand to testify in his behalf, and, when he had finished his examination, not having asked her about the facts necessary to submit to the jury the question of suspension of sen-tenee, the court explained to the defendant that it was necessary for him to do so before he could submit the question to the jury, and that, unless he did offer such evidence, the court would not submit the question, and suggested the questions that he ask, the defendant declined to ask the questions, stating that he did not desire to offer any evidence on it. * * * ”

The court did not submit the question of the suspension of the sentence to the jury. Article 776, C. C. P., provides in part as follows:

“When the defendant has no counsel, the court shall inform the defendant of his right to make such application, and the court shall appoint counsel to prepwe and present saíne if desired by defendant.”

Article 778, C. C. P., in part reads as follows:

“The court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and submit the question as to whether the defendant has ever before been convicted of a felony; such testimony shall be heard and such question submitted only upon the request in. writing by the defendant; provided, that in all cases sentence shall be suspended if the jury recommends it in their verdict.”

In the ease of Holdman v. State, 94 Tex. Cr. R. 433, 251 S. W. 218, this court said:

“In a case where there exists no legal impediment to the granting of the suspended sentence, it would doubtless be a serious error for the trial court to ignore this provision of the statute.”

The statute provides that the court shall appoint counsel to “prepare and present” the application for suspended sentence. The term “present” employed by the statute is defined by this court in the case of Moses v. State, 94 Tex. Cr. R. 433, 251 S. W. 219, ¿s follows:

“ ‘Present’ means ‘to lay before a judge, magistrate, or governing body for action or consideration; submit, as a petition, remonstrance, etc., for a decision or settlement to the proper authorities.’ Century Dictionary.”

The defendant had the right under the statute to prove his good reputation in order that the jury might be enabled to determine whether or not they would recommend the suspension of the sentence. It does not appear from the record whether witnesses were available to prove his good reputation and whether he knew that he had the right to make such proof, if the witnesses could be secured. An attorney representing his interest could have advised him of his rights under the statute. The fact that there was no attorney in court when appellant’s case went to trial did not relieve the court of the duty of complying with the provisions of the stat-' ute.

In view of what we have said, we are constrained to hold that appellant wasi deprived of counsel to represent his interests as contemplated by the statute, and that the court’s action in overlooking the provision of the statute constitutes reversible error. See Moses v. State, 94 Tex. Cr. R. 433, 251 S. W. 219; Holdman v. State, 94 Tex. Cr. R. 433, 251 S. W. 218.

The judgment 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. 
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