ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In his motion for rehearing, appellant renews his complaint of the instruction to the jury on the issue of the suspended sentence, in which the court used *347the following language: “In passing upon the defendant’s plea for a suspended sentence the law authorizes you to take into consideration the general reputation of the defendant, but you will bear in mind that it is wholly discretional with the jury as to whether you do or do not recommend a suspension of sentence. And when you recommend a suspension of sentence the law provides that it is obligatory upon the court to suspend sentence during good behavior of the defendant, but sentence can only Be suspended when recommended by the jury.”
Exception to the quoted part of the charge is made in the fourth paragraph of the appellant’s objection to the charge.
There was uncontroverted evidence that the appellant had not previously been convicted of a felony. The plea for a suspended sentence authorizes the introduction of evidence by the state bearing upon the reputation of the accused. See article 778, C. C. P., 1925. No evidence upon that subject was introduced by either the state or the appellant.
In the present instance, the plea for a suspended sentence authorized the state to prove that the general reputation of accused was bad, but in the" absence of evidence on the subject, the issue was not properly before the jury, and in referring to it, the charge was without evidence to authorize it. That the instruction to the jury should be confined to the evidence and applicable to the facts before the jury is statutory. See article 658, C. C. P., 1925.
It appears from the record in the instant case that in debating the matter of the suspended sentence among the jurors there was reference to the fact that the appellant had offered no proof of his good reputation. The character of the discussion suggests that the jurors were impressed with the view that the burden of proof was upon the accused to show that his reputation was good. We are therefore constrained to conclude that in embracing the question of the reputation of the accused in the charge of the court and in refusing the appellant’s request to eliminate it, and in overruling the motion for new trial, prejudicial error was committed. The conclusion stated is deemed supported by the opinion of this court in the case of Martin v. State, 54 S. W. (2d) 812, and also the case of Kirk v. State, 39 S. W. (2d) 61.
In the Martin case, supra, but one witness was introduced who testified that he had known the appellant, Martin, all his life and that he had never been convicted or prosecuted for any violation of the law in this or any other state. The state introduced no evidence to combat the testimony mentioned. The *348prosecuting attorney, in his closing argument to the jury, used the following language: “Gentlemen, the defendant is not entitled to a suspended sentence; if he has a good reputation, why did he not bring some good men down here * * * and prove it.”
Objection to the argument was made. The court declined to exclude it, or to instruct the jury to disregard it. The comment of this court in reversing the case was in part as follows:
“The jury unquestionable had the power and right to recommend the suspension of sentence in the absence of proof of good reputation. * * * However, the county attorney told them that appellant was not entitled to a suspended sentence unless he had proved a good reputation. * * * It was incorrect and not in accord with the court’s instruction on the subject. The court declined to tell the jury that the statement objected to was not the law. * * * This action may have been regarded by the jury as an indorsement by the court of what the county attorney had stated the law to be.”
In the present instance, it is the language of the court itself that was calculated to lead the jury to believe that the accused was in default in failing to introduce proof of his good reputation.
Because of the error pointed out, we are constrained to conclude that the motion for rehearing should be granted, the order of affirmance set aside and the cause reversed and remanded for another trial. It is so ordered.
Reversed and remanded.