In his motion for rehearing appellant reiterates his complaint that the assistant county attorney had made an agreement not to contest appellant's application for a suspended sentence and did in fact contest the same upon the trial. A further careful review of the facts, the bills of exception and affidavits before us which are a part of the record shows that the trial court was justified in concluding that said state's attorney did not agree to refrain from presenting to the jury all available facts properly affecting the right of appellant to a suspended sentence. It is not *Page 349 claimed that said state's attorney in his argument opposed the granting of it. As shedding light upon the attitude of the matters before the trial court the affidavit of the assistant county attorney shows that when approached by appellant's attorney relative to the matter the assistant county attorney stated that he was opposed to the suspended sentence in this case but in view of the facts that a codefendant had received one the state's attorney would go no further than to fully develop the facts and leave it to the jury. The argument of the state's attorney which is set out in his affidavit without contradiction by appellant, shows that he left it entirely to the jury to say what they would do in that respect. The attorney for the state is a sworn officer under a solemn duty to the whole people and he has no right to undertake to bind the state by an agreement which would result in wrong to society and the state at large. If in fact the past life and conduct of one accused be such that it would likely prevent the giving of a suspended sentence it would appear a dereliction on the part of attorney representing the state to agree to withhold proper facts from the jury in order that such a person might obtain a suspended sentence.
In the last paragraph of our original opinion we referred to complaint at what took place during the cross examination of appellant. The disposition of the question was based solely on what was thought to be the incompleteness of the bill of exception bringing the matter forward for review. It was not intended to convey the idea that inquiry for the purpose of impeachment or to prevent a suspended sentence might be made regarding the result of a juvenile proceeding in the face of Art. 1092 Cow. C. P. which forbids it, and which reads as follows:
"A disposition of any delinquent child under this law or any evidence in such case, shall not, in any civil, criminal or other cause or proceeding whatever, in any court, be lawful or proper evidence against any child for any purpose whatever, except in subsequent cases against the same child under this law. Neither the conviction of the accused as a delinquent child nor the service of sentence thereunder shall deprive him or her of any rights of citizenship when such child shall become of full age."
We have said this much for fear we did not make ourselves clearly understood by the language used in the original opinion. A further examination of the statement of facts shows the fact that appellant had been to the reformatory went into the record and reached the jury as a result of testimony given by appellant upon *Page 350 direct examination. The question propounded by state's counsel in regard to the matter was brought about as a result of the evidence thus given. Regardless of whether the bill upon its face was sufficient, the facts just recited render the complaint unavailing.
The motion for rehearing is overruled.
Overruled.