This appeal is from a conviction of burglary in the Criminal District Court of Harris County, a penalty of two years having been assessed.
From the only bill of exceptions in the record it appears that while the jury in the instant case were in retirement deliberating upon their verdict, another jury also trying appellant for a different felony, brought into court a verdict of guilty against her, with a recommendation of a suspension of the sentence, whereupon the trial judge called into open court the jury in the instant case and took out of his charge that part of same wherein he had submitted the law relative to suspended sentence, and had said jury returned to their room from which they presently emerged with a verdict of guilty herein.
Appellant insists that the trial court had no right to change said charge after the argument had concluded and the case had gone to the jury; and that she was entitled to a suspended sentence in this case as well as in the one whose verdict was earlier returned and in which she received such suspended sentence. Under the authority of Nowlin v. State, 76 Tex. Crim. 430, 175 S.W. Rep., 1070, approved in Jacobs v. State,85 Tex. Crim. 505, 213 S.W. Rep., 628, we think it not an open question as to the right of the trial court to withdraw his charge after the conclusion of the argument and to change same, though, we observe, in a proper case such action might require the allowance of additional argument. We see no difference in principle in allowing the court in a proper case to recall the jury after they had begun their deliberation, and to change the charge in any matter which he had become convinced was erroneous.
The question as to the right of one accused of crime to the benefit of more than one suspension of sentence, must be answered in the negative, though in our opinion the matter should be clarified by legislative pronouncement. The same Legislature which wrote the body of Senate Bill No. 5, which became Chapter 7, Acts Regular *Page 314 Session of Thirty-third Legislature, and is now our law of suspended sentence, also wrote the caption to said bill. The first line of said caption is as follows: "An Act to provide for the suspension of sentence in certain cases of conviction of felony for first offenses." Section 1 of said Act in terms provides "that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony." From these and other parts of said Act it is mnaifest that the benefit of the suspended sentence law was only for those who might be termed first offenders.
Can one who has been convicted of a felony and whose sentence has been suspended in compliance with this law, truthfully swear or prove in some subsequent trial that he has "never before been convicted of a felony?" This depends on what is meant by the expression "convicted of a felony" as used in this statute. Again reverting to Sec. 1 of said Act, we observe that it says: "When there is a conviction of any felony . . . the court shall suspend sentence . . . provided, that in no case shall sentence be suspended except the proof shows . . . the defendant has never before been convicted of a felony." In Section 2 of said Act it is provided that neither the verdict of conviction nor the judgment shall become final, except as provided in Section 4. In Section 3 of said Act we find this statement: "Sentence is suspended . . . during the good behavior . . . By the term `good behavior' is meant that the defendant shall not be convicted ofany felony during the time of such suspension." Section 4 of said act contains the following: "Upon the final conviction of the the court . . . shall pronounce sentence upon the original judgmentof conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction." In Section 5 of said Act, after providing the manner of setting aside the judgment of conviction at the expiration of the period of the suspended sentence, we find the following: "After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose, except in cases where the defendant has been again indicted for a felony and invokes the benefit of this act." In the emergency clause of said Act it is stated: The fact that there is now no law in this State providing for suspension of sentence in certain cases of felony, and the fact that such a law will redound to the great benefit and to the reformation of young convicts "for first offenses," creates an emergency, etc.
It seems clear from what we have just presented that by the use of the words "conviction of a felony" in Sections 1, 2, 3 and 5 of the statute under discussion, was meant that status resulting from a judgment based on the verdict of a jury finding the accused guilty of some *Page 315 felony. The term "conviction" is used in many of our statutes in much the same sense. As illustrative, we note that Art. 843, Vernon's C.C.P., relating to the effect of the granting of a new trial, contains the following language: "The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument." See also Art. 778, Vernon's C.C.P., in which it is said: "In any case of acquittal or conviction the proper judgment shall be entered immediately." Many other citations might be made.
We observe also that by the use of the expression "final conviction of the defendant" in Section 4 of the Act under discussion, in our opinion, the law-makers intended and referred to a different legal status from that meant in other portions of said Act by the use of the words "conviction of a felony." In said Section 4 we think the Legislature referred to that status of the accused when he has not only been found guilty of a felony and judgment entered against him but that such judgment has become final in some of the ways known to our law, and sentence directing the execution of such judgment has been pronounced.
Our conclusion is from the above statements, that one convicted of a felony where sentence is suspended is within the comprehension of this statute when it uses the expression "convicted of a felony," and we further hold that such person is not thereafter entitled to file an application for a suspension of sentence in any felony case, and that should he be thereafter tried for such felony, said trial should proceed to its conclusion as though there was no such thing as a suspension of the sentence, and that after the judgment becomes final and sentence is pronounced, if there be pending against such accused a suspended sentence theretofore given in another case, the court before whom same is pending may proceed as outlined in Section 4 of said Chapter 7, which is Art. 865e of Vernon's C.C.P.
It follows that we are of opinion that appellant is not entitled to the benefit of a suspended sentence herein, and that no error was committed in withdrawing such issue from the consideration of the jury, and that for the reasons stated the judgment of the trial court should be and the same is hereby affirmed.
Affirmed.
ON REHEARING. October 4, 1922.