In the State's motion for rehearing it is pointed out that we were in error in stating in our original opinion that appellant made no application for a suspended sentence. It appears from the record that an application for a suspended sentence was timely filed and submitted to the jury in the charge of the court.
The State contends that the jury were warranted in recommending that sentence be suspended as to that part of the punishment relating to the confinement of the appellant in jail for a term of six months, and in withholding such a recommendation as to the fine they assessed. We are unable to agree with this contention. The right to have the sentence suspended is given in our statutes relating to the subject. See Article 776, C. C. P. We know of no statute authorizing the sentence in a felony case to be suspended as to part of the punishment. The present prosecution was for a felony, notwithstanding that part of the penalty assessed was a fine. There being no authority in law authorizing the procedure disclosed by the record herein, we are constrained to hold the verdict of the jury and the judgment based thereon to be void.
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.