BIERMAN v. STATE.
(Court of Criminal Appeals of Texas.
Feb. 25, 1914.
On Motion for Rehearing, March 18, 1914.)
1. Criminal Law (§ 1023) — Decisions Reviewable — Conviction and Suspended Sentence.
Under Code Cr. Proc. 1911, art. 856, providing that, in all cases of felony, sentence shall be pronounced before an appeal is taken, one at whose instance sentence was suspended had no right of appeal before sentence was pronounced.
[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.]
On Motion for Rehearing.
2. Criminal Law (§ 1023) — Decisions Reviewable — Conviction' and Suspension op Sentence — Statutes.
Under the Suspended Sentence Law (Acts 32d Leg. c. 44) § 2. providing that the court, upon request of defendant, shall submit his general reputation, and the question of his former conviction of a felony to the jury, and shall suspend sentence if they so recommend, in which case neither the conviction nor the judgment entered thereon shall become final, except as provided by section 4, which declares that, upon final conviction of any other felony pending suspension of a sentence, the court shall issue a capias for defendant’s arrest, and, upon execution thereof, shall pronounce sentence, on the original judgment of conviction, a conviction with suspended sentence was not a final ap-pealable judgment.
[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.]
Appeal from District Court, Cooke County; C. F. Spencer, Judge.
Frank Bierman was convicted of unlawfully selling intoxicating liquor in prohibition territory and his sentence suspended, and he appeals.
Dismissed without prejudice.
*841Gulp & Culp and W. O. Davis, all of Gainesville, for appellant. Lewis Rogers, Co. Atty., and Owen Davis, Asst. Co. Atty., both of Gainesville, and C. E. Lane, Asst. Atty. Gen., for the State.
HARPER, J.
Appellant was convicted of unlawfully selling intoxicating liquor in prohibition territory.
Appellant filed a plea praying that, in the event he was found guilty, his sentence should be suspended, and the jury returned the following verdict: “We, the jury, find the defendant guilty and assess his punishment at one year’s confinement in the penitentiary. We find that he has never been convicted of a felony, and recommend to the court that his sentence be suspended in this case.” The court, in accordance with said verdict, entered up a judgment adjudging appellant guilty, also reciting and adjudging as follows: “But, it appearing to the court that the defendant, Frank Bierman, had filed herein his request in writing under oath for a suspension of the sentence herein, and the jury having heard said request and the evidence in support thereof, and having found by their verdict that the defendant was a man of good character, that he had never been convicted of a felony prior to this time, and having recommended in their verdict that the judgment and sentence of the court be suspended, it is considered and ordered by the court that sentence of the judgment of conviction herein be and the same is hereby suspended during the good behavior of the defendant.” No sentence has ever been pronounced, but appellant filed a motion for a new trial, and, when it was overruled, gave notice of appeal, and undertakes to prosecute an appeal to this court.
[1] The question arises: Has a person adjudged guilty, and who at his request and instance has had. the sentence suspended, the right of appeal before sentence is pronounced? The right of appeal is given in this state upon such conditions and, restrictions as the Legislature may adopt, and we think it clear, from reading the Suspended Sentence Act, it was not the intention of the Legislature to give the right of appeal in this character of case until sentence has been pronounced. Article 856 of the Code of Criminal Procedure provides that in all eases of felony (except where the death penalty •is assessed) sentence shall he pronounced before an appeal is talcen, and, where the person on trial secures the suspension of pronouncing of sentence, his right of appeal does not arise until sentence is pronounced. If the court should hereafter, for any reason, call him before the court and pronounce sentence, his right of appeal would then accrue, and he could then prosecute an appeal to this court, but not until then. No sentence having been pronounced, and it being at his instance and request that sentence was suspended, this appeal must be dismissed, but without prejudice to his right to appeal, if sentence should hereafter be pronounced on the verdict and judgment.
The appeal is dismissed.
On Motion for Rehearing.
[2] Appellant has filed a motion for rehearing, in which he earnestly insists we were in error in dismissing his appeal; that the judgment entered was a final judgment, although no sentence was pronounced. To so hold would be in direct conflict.with the provisions of the Suspended Sentence Law (Acts 32d Leg. c. 44). Section 2 reads: “The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever 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. Provided further, that in such cases, neither the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided for by section 4 of this act.” It is thus seen that by law it is now specifically provided that this shall not be a final judgment. Section 4 reads: “Upon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court; and upon the execution of a capias, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.” As said in the original opinion, that, should circumstances in the future arise whereby under the provisions of this latter section, the court should pronounce sentence, then and not until then does his right of appeal lie under our law.
The motion for rehearing is overruled.