In his motion for rehearing, appellant insists that, in discussing his Bill of Exception No. 1, we did not refer to, and did not incorporate in our opinion, the further testimony of the juror, given in connection with that set out in our opinion, and which, the motion states, was as follows:
"No, he did not believe in giving the defendant a suspended sentence in this case; that he might go to Oklahoma and get into devilment and the punishment we gave him would not be added on if he did."
It is now appellant's contention that such testimony not only showed that the juror was prejudiced against the suspended sentence but that it constituted new and other evidence before the jury, during its deliberations, because same related to the effect and application of the law relative to suspension of sentence.
In addition to what we said originally, another very good reason exists why the bill of exception fails to reflect error, namely: the issue of a suspended sentence was not before the jury, nor was it the subject of consideration by it, because the jury having acquitted appellant of assault with intent to murder and having convicted him only of a misdemeanor, no authority existed for a suspension of the jail sentence imposed thereby. A suspension of sentence is authorized only upon conviction for a felony. Art. 776, C. C. P. If, as contended by appellant, the statement of the juror in the jury room showed that he was prejudiced against the law of suspended sentence, or if it showed that it related to that issue, same would not be a ground for a new trial, because it was neither pertinent nor material to any issue before the jury.
We are constrained to adhere to the conclusion reached originally that Bill of Exception No. 2, relative to discussion in the jury room as to the customs and habits of the members of the Mexican race in carrying and using knives, does not show reversible error. This bill of exception reflects that such statements were made while the jury was discussing whether the *Page 304 appellant was guilty of assault with intent to murder. The jury acquitted appellant of that offense by finding him guilty of aggravated assault only. Moreover, appellant admitted that he stabbed the injured party with a knife, and claimed that he was justified in the act. There was no suggestion that the knife was used by him other than for stabbing. That appellant was a member of the Mexican race, or was of Mexican descent, is not shown by the testimony. His name suggests such fact, but this constitutes a presumption only.
The motion for rehearing is overruled.
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.