
    KING v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Statements oe Facts.
    A purported statement of facts made up entirely of questions and answers, and not approved either by counsel or the trial judge, though certified to be correct by the official stenographer, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 982) — Suspension oe Sentence.
    Where the jury found accused’s previous good character, and that he had not been previously convicted of a felony, but did not recommend that the execution of the judgment be suspended, tbe court could not suspend such execution.
    TEd. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    3. Constitutional Law (§ 74) — Criminal Law (§ 978*) — Judicial Power — Encroachment on Executive Power — Suspension of Sentence.
    Acts 33d Leg. c. 7, providing for the suspension of sentence in certain cases upon recommendation of the jury, is valid, since there is a broad distinction between tbe suspension of sentence which would interfere with the pardoning power and the suspension of the judgment or its execution by preventing the passing of sentence which does not interfere with such power, as that power does not attach or become operative until after tbe final judgment or sentence.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74; Criminali'Law, Cent. Dig. §§ 2484, 2485, 2487; Dec. Dig. § 978.]
    Appeal from District Court, Howard County; W. W. Beall, Judge.
    W. T. King was convicted of assault to murder, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at three years’ confinement in tbe penitentiary.

There is what purports to be a statement of facts accompanying tbe transcript; it is certified by tbe official stenographer of tbe district court to be correct. It seems in its entirety to be made up by questions and answers and further it may be noted that tbe statement of facts is not approved either by counsel or by tbe trial court. Being in this condition tbis court cannot consider it as a statement of facts.

Appellant moved the court to submit the question of bis former good character, and tbe fact that he bad not been previously convicted of a felony, as a predicate for a recommendation of tbe suspension of tbe execution of tbe judgment against him. Tbe court submitted it to tbe jury, and they found previous good character, and that be bad not been previously convicted of a felony, but failed to recommend in the verdict that the execution of the judgment be suspended. This ruling of the court appellant contends was error. In Roberts v. State, 15S S. W. 1003, which was followed by Potter v. State, in 159 S. W. 846, this court held it was necessary for the jury to recommend the suspension of the execution of the judgment as a prerequisite to such suspension. We have seen no reason to change the conclusion reached in those cases. This is a legislative matter, and that body provided that the verdict should so specify. We think it was within the legislative power to make this provision, and that, in reaching this conclusion, we are not antagonistic to nor out •of harmony with the opinions in .the Snod-grass Cases. Acts 33d Legislature, p. 8, is based upon an entirely different theory ■and proposition from the previous suspended sentence act. There is a broad distinction recognized by the law and the decisions between the suspension of the sentence and that which suspends the judgment or its execution or which intervenes and prevents the passing of the sentence. The first would interfere with the pardoning power; the other may not, inasmuch as the pardoning power does not attach or become operative until after the final judgment or sentence.

The other questions presented cannot be .revised in the absence of a statement of facts. As the record is presented to us, the judgment will be affirmed.  