
    F. T. Martin v. The State.
    No. 2639.
    Decided June 27, 1913.
    Burglary—Suspended Sentence Act—Practice on Appeal.
    Where, upon trial of burglary, the defendant invoked the suspended sentence Act of the Thirty-third Legislature, which was submitted by the court, and the jury under the evidence found defendant guilty and assessed his punishment at four years imprisonment in the penitentiary, with recommendations to suspend the sentence, which the court refused to do, the cause must be remanded with instructions to comply with the verdict of the jury. Following Baker v. State, 70 Texas Grim. Rep., 618, recently decided.
    Appeal from the Criminal District Court of Harris. Tried below before the Hon. C. W. Robinson.
    Appeal from a conviction of burglary; penalty, four years imprisonment in the penitentiary with recommendation to suspend sentence.
    The opinion states the case.
    No brief on file for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

Appellant was convicted of burglary, his punishment being assessed at four years.

The matters set forth in the suspended sentence Act of the Legislature were properly submitted by the court to the jury. They found all these issues in favor of appellant. The court, however, declined to suspend the sentence, although the jury specifically recommended it.

On account of this error of the court this case will be remanded to the Criminal District Court of Harris County with instructions to enter suspension of sentence in accordance with the finding of the jury. This case is in the same attitude as the recent case of Baker v. State, 70 Texas Crim. Rep., 618, from the same county, the opinion in which was delivered by Judge Harper. This judge will follow the directions and instructions therein set out.

The cause is remanded to the Criminal District Court of Harris County with instructions to render the judgment in accordance with the finding of the jury.

Reversed with instructions.  