
    WHITLEY v. STATE.
    (No. 9939.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    Criminal law <&wkey;885 — Court was justified in treating jury’s recommendation in verdict for suspended sentence as surplusage, where accused was not entitled under law to receive suspended sentence, and matter was raised for first time on motion for new trial.
    Where verdict finding defendant guilty also recommended a suspended sentence, court was justified in treating recommendation for suspended sentence as a surplusage, where accused, because of age, was not entitled to receive a suspended sentence, made no application therefor, and raised question for first time on motion for new trial.
    Commissioners’ Decision.
    Appeal from District Court, Caldwell County ;■ M. C. Jeffrey, Judge.
    Emmitt Whitley was convicted of transporting liquor, and he appeals.
    Affirmed.
    C. R. Fields, of Lockhart, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is transporting liquor, and the punishment is one year in the penitentiary. There are no bills of exception in the record.

In the motion for a new trial' appellant complains at the court’s action in receiving the verdict that was written and returned by the jury in this case. This verdict found the defendant guilty of unlawfully transporting liquor, and assessed his punishment at a year in the penitentiary, and recommended a suspended sentence. The facts show that appellant was 37 years of age, and for that reason was not entitled under the law to receive a suspended sentence, and no application for a suspended sentence was made, and the jury was not charged on this question. This court has held in the cases of Barnett v. State, 170 S. W. 143, 74 Tex. Cr. R. 619, Speer v. State, 171 S. W. 201, 75 Tex. Cr. R. 348, and Bessett v. State, 180 S. W. 249, 78 Tex. Cr. R. 110, that where there is no application for a suspended sentence, the trial court is authorized to receive the verdict making a recommendation for the same, but to dirsegard same, and to sentence defendant to confinement in the penitentiary. The holding in the above cases is to the effect that the recommendation may be treated as surplusage. This case is much stronger than the above cases. The appellant sat idly by, and did not except to the receipt- of the verdict rendered in this case, and made no request to have the jury retired to reconsider the verdict, but contents himself by raising the matter for the first time in the motion for a new trial. We believe that the court was justified under the facts of this case in treating the recommendation for a suspended sentence as surplusage, and, there being no errors in the record, it is- our opinion that the judgment should be in all things affirmed.

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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