
    BARRETT v. STATE.
    (No. 8852.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied June 10, 1925.)
    I. Criminal law <&wkey;982 — Accused’s age at time of trial controls construction of statute relative to suspension of sentence.
    Under Acts 37th Leg. (1st Called Sess.) c. 61, § 2d (Yernon’s Ann. Pen. Code Supp. 1922, art. 588%04), denying benefit of sus-, pended sentence to persons over 25 years of age, accused’s age at time of trial and not at time of commission of offense or return'of indictment controls.
    On Motion for Rehearing.
    2. Criminal law t&wkey;>982 — Judge’s charge as to defendant’s age under issue of suspension of sentence held not misleading.
    Where issue of suspended sentence under Acts 37th Leg. (1st Called Sess.) c. 61, § 2d (Vernon’s Ann. Pen. Code Supp. 1922, art. 588]4a4),. was submitted to jury, instruction that, if they ijound defendant to be under 25 years of age, they might recommend suspension of sentence, 'held not objectionable on ground that it did not advise jury as to quantum of proof necessary, and hence might mislead them to think it .necessary to show age beyond reasonable doubt.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Leonard Barrett was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Defendant entered a plea of guilty to a charge of transporting intoxicating liquor, and asked for a suspended sentence. After hearing the evidence, the jury fixed his punishment at one year in the penitentiary, but failed .to suspend the sentence.

By the terms of section 2d, c. 61, First Called Session, Thirty-Seventh Legislature (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼a4), the benefit of suspended sentence is denied a person over 25 years, convicted of the offense for which defendant was being tried. Exception was taken to the charge upon the issue of suspended sentence. We do not discuss the point, for the reason that defendant was not entitled to have that issue submitted at all. The offense was alleged to have occurred in December, 1923, but the case was not tried until March 14, 1924. The evidence shows defendant was born September 26, 1898, making him 5 months and eighteen days over 25 years of age at the time of trial. Age at time of trial controls, and not at the time the offense was committed or indictment returned. Kitchen v. State (Tex. Cr. App.) 267 S. W. 497.

The judgment is affirmed.

On Motion for Rehearing.

Defendant insists that the evidence, when properly understood, shows that he was born in the year 1899. If there be a question about it, the court below was right in submitting the issue of. suspended sentence. He instructed the jury, if they found that defendant was not over 25 years of age, they might recommend that his sentence be suspended. The charge was excepted to upon the ground that it did not advise the jury as to the quantum of proof necessary relative to defendant’s age, and that, by the charge given, the jury might be misled to think it was necessary to show his age “beyond a reasonable doubt.” We think it was not at all likely the jury was confused about the matter. The term “beyond a reasonable doubt” was nowhere used in the court’s charge, it relating to the plea of guilty, and the jury would not be apt to interpolate into the charge an expression omitted therefrom by the learned trial/judge. For this reason we think defendant’s contention not sound.

The motion for rehearing is overruled. 
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