The conviction is for the unlawful possession of equipment for the manufacture of intoxicating liquors; punishment fixed at confinement in the penitentiary for a period of one year.
The appellant, preliminary to announcement of ready for trial, prepared and filed, in accordance with Article 865b, a plea seeking to have the jury determine whether his sentence should be suspended in the event of conviction. Article 717 of the Code of Crim. Proc. gives the accused, through his counsel, the privilege of stating to the jury, "the nature of the defense relied upon by him and what facts he expects to prove in their support." Availing himself of this privilege, counsel began to relate the facts which he expected to prove in support of his plea for a suspended sentence when the court interrupted, stating that he did not believe the case to be one coming within the purview of the Suspended Sentence Law, and remarking: "This is as good a case as any to test the law. I will not let you go into the matter of the suspended sentence." Exception was reserved, and the issue of suspended sentence was not submitted to the jury, though there was evidence introduced that he bore a good reputation, and in developing his defenses, facts which might have been regarded by the jury as mitigating the offense were introduced. The plea of suspended sentence appears to have been treated as having been eliminatd by the action of the trial court mentioned. If the plea was a part of the case, appellant's right to have his theory stated by his counsel, in accordance with Article 717, seems unquestioned. Poole v. State, 45 Tex. Crim. 348; House v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 206; Owen v. State, 52 Tex.Crim. Rep.; Walsh v. State, 85 Tex.Crim. Rep.; Dugan v. State, 82 Tex. Crim. 422, 199 S.W. Rep., 616. The practical effect of the court's action was, on his own motion, to *Page 233 strike out the plea of suspended sentence, upon the view, as stated by him, that the offense was one to which the law permitting the suspended sentence had no application. At the time the ruling was made, the right of the accused to avail himself of that plea had never been presented to this court for decision and was therefore an open question, but later, on its presentation, it was decided that such plea was available. Carr v. State,89 Tex. Crim. 245, 230. S.W. Rep., 405. There can be no doubt that the effect of the procedure was to prevent the appellant from having submitted to the jury the question of the suspension of his sentence. The matter presented, in our opinion, requires a reversal of the judgment, which is ordered.
Reversed and remanded.