We are not able to bring ourselves into accord with the postion taken by the State, in its persuasive motion for rehearing wherein it is urged that we were in error in concluding that the 1925 Cow. C. P. having re-enacted the suspended sentence law of 1913, after same had been construed in Martin v. State, 82 Tex.Crim. Rep., — this in legal effect adopted as part of said amended act, the construction thereof referred to.
We have examined with interest the general repealing clause appended to said 1925 Cow. C. P., wherein it is said: "This act shall be construed to be an independent act of the Legislature, enacted under the caption thereof, and the articles contained in this act * * * shall not be construed as a continuation of former laws except as otherwise herein provided." The rule followed in our original opinion herein seems binding, whether the subsequent act of the Legislature be a re-enactment of some former law, or be a new law. In Corpus Juris, vol. 59, sec. 625, it is stated that the same rule applies in the construction of a statute enacted after a similar or cognate statute has been judicially construed. In our jurisdiction this seems adhered to in Ex Parte Ferguson, 112 Tex. Crim. 152; Vaughn v. State, 86 Tex.Crim. Rep.; State v. Yturria, 109 Tex. 220; Humble Pipe Line Co. v. State, 2 S.W.2d 1018, and others. See Adams v. State, 66 Tex. Crim. 220; Cargill v. Kountze, 86 Tex. 387.
It is also insisted that since upon the trial appellant was allowed to put before the jury his proof that he had never been convicted of a felony, and was thereafter given a penalty of fifteen years in the penitentiary, — the failure to submit the issue of his right to a suspended sentence was harmless error, if any, and that under the mandate of article 666, C. C. P., this court should not reverse. It is true that article 776, C. C. P., deprives a jury of the power to recommend a suspended sentence, or a court to give one, — when the penalty fixed by the verdict of the jury exceeds five years. It has also been held, however, that the right to have this issue submitted in a proper *Page 313 case is a substantial right, the denial of which will be cause for reversal. Fernandez v. State, 82 Tex.Crim. Rep.; Tonnahill v. State, 90 Tex.Crim. Rep.; Carr v. State,89 Tex. Crim. 245; Taylor v. State, 96 Tex. Crim. 379. While the suspended sentence law is purely a penalty statute, and should be given no weight in determining the question of guilt, it seems fair to say that no one, be he judge on the bench or otherwise, can say that, in passing on the punishment to be meted out for a first felony offense, the jury's determination of the length of time to be given might not be affected by the presentation and consideration of an application to suspend the sentence, in case no greater term be given therein than five years. We see no difference in the principle involved whether the sentence imposed by fifty years or six. We are confronted with the proposition that a mandatory statute has been disregarded, and a substantial right has been denied, and it seems to us far better that the case be sent back for another trial than that we lay down a precedent whose establishment would be in the face of such statute and of such denial.
The State's motion for rehearing will be overruled.
Overruled.