In this case the state moves for a rehearing, urging that before the accused in any case is entitled *Page 192 to have the issue of suspended sentence submitted to the jury there must be enough evidence presented to fairly raise such issue and afford reasonable support to a finding upon same in favor of the accused; and that in this case the record makes no such showing. We have carefully examined the testimony upon this point.
Appellant's aunt swore that she had known him all of his life, and had the care of raising him, and that at no time within ten years next past had he been out of Fort Worth as much as six months at any one time. Mr. Wall, deputy district clerk of Tarrant County, swore that he had examined the records of convictions for felonies in the district clerk's office of Tarrant County as far back as 1919 and found no record of any felony conviction against appellant. This comprises the testimony relied on as showing appellant entitled to have the issue of suspended sentence submitted to the jury. Upon more mature consideration we do not think the action of the trial court erroneous in refusing to submit this issue upon such showing. True, as said by us in cases cited in our original opinion, the right to a suspended sentence is a valuable one, and when the testimony reasonably supports such issue, it should go to the jury. In the instant case we observe that the mother of appellant was a witness; that the record shows that his people lived in Fort Worth; that his aunt was a witness also, but neither the mother, the aunt nor any other witness affirmed that appellant had never been convicted of a felony. Appellant did not take the witness stand. That the aunt affirmed that he had not been out of Fort Worth as much as six months at any one time, could not be given any weight at all as showing that he had not been convicted of a felony. Appellant was under twenty-one years of age. He could have committed a felony in any county in Texas, have pleaded guilty thereto, or been tried therefor, and have received a suspended sentence, all within ten days, much less six months. The great city of Dallas lies immediately contiguous to Fort Worth, where appellant lived. He could have committed a felony in Dallas and been indicted the next day, tried and convicted, and given a suspended sentence within a week, and still his aunt told the truth about his not being out of Tarrant County as much as six months at a time. We regard this testimony as amounting to nothing. This leaves in the record only the statement of the deputy district clerk of Tarrant County that the defendant had not been convicted of a felony in the county of the forum within eight years prior to this trial. *Page 193
We must not lose sight of the fact that the burden of showing himself entitled to a suspended sentence rests upon the accused, that is, that he must satisfy the jury that he has not been convicted of a felony in this or any other state prior to the instant trial. We are then remitted in this case to this proposition, viz.: Does proof that the accused has not been convicted alone in the county in which he lives, of a felony, justify the trial court in submitting the issue; or would it justify the jury if such issue was submitted, in a finding in favor of the appellant thereon? We do not think so. If such had been the intention of the Legislature we believe they would have so stated.
We see no reason in the world why appellant's mother, his father, his aunt, or some of his associates who testified in the case in his behalf, could not have been asked a direct question by the appellant as to whether he had theretofore been convicted of a felony, if he had been in fact in good faith relying upon this proposition to escape the results of conviction or wished to meet the burden imposed on him of showing that he had not been so convicted.
Believing we were in error in the original opinion in holding that the evidence required the submission of this issue to the jury, and that there was no error committed upon the trial of the case calling for a reversal, the state's motion for rehearing will be granted, the judgment of reversal set aside, and the judgment now affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.