Dissenting.
In accordance with the views of a majority of this court, as stated in Gilderbloom v. State, 160 Texas Cr. Rep. 476, 272 S.W. 2d 106, the minimum punishment affixed to the offense of drunken driving (Art. 802, Vernon’s P.C.) is a fine of $50 and three days’ confinement in the county jail.
No authority exists to commute, suspend, or extend probation of the jail sentence.
Here, the trial court, in submitting this case to the jury, correctly instructed on the penalty. There was no mention in the charge of the jury’s right to suspend the jail penalty.
The jury returned the following verdict in the case:
“We the Jury, find the defendant guilty as charged and assess his punishment at 3 day in Jail and (-50.00) fifty Dollar fine We furthermore recommend the suspension of the Jail sentence”
The trial court received that verdict and ordered it filed.
When the trial court came to enter judgment on that verdict, however, no reference was made to the suspension of the jail penalty, as recommended by the jury. That recommendation was completely ignored.
It is the rule that when a trial judge receives and orders filed the jury’s verdict, he is bound to enter judgment in accordance with that verdict; he cannot enter another or different judgment than that called for by the verdict. Among attesting authorities are the following cases: Hardy v. State, 159 Texas *77Cr. R. 54, 261 S.W. 2d 172; Baker v. State, 70 Texas Cr. R. 618, 158 S.W. 998; Essery v. State, 72 Texas Cr. R. 414, 163 S.W. 17; Coleman v. State, 75 Texas Cr. R. 66, 170 S.W. 150; Pritchard v. State, 117 Texas Cr. R. 106, 35 S.W. 2d 717; Williams v. State, 118 Texas Cr. R. 366, 42 S.W. 2d 441; Cagle v. State, 147 Texas Cr. R. 140, 179 S.W. 2d 545; King v. State, 135 Texas Cr. R. 71, 117 S.W. 2d 800.
The case of Ex parte Edwards, 125 Texas Cr. R. 188, 67 S.W. 2d 308, appears to me to be here applicable. In that case, Edwards was convicted of the offense of passing a forged instrument. He filed an application for a suspended sentence but did not support it by the necessary proof. The trial court did not submit to the jury the question of the suspension of sentence. Notwithstanding such fact, the jury did recommend in its verdict that the sentence be suspended. The trial court received that verdict and tendered judgment thereon but refused to suspend the sentence. The recommendation for suspension of the sentence was ignored because the accused had not made the proof necessary to authorize it. The judgment of conviction in that case was held to be absolutely void and subject to attack by writ of habeas corpus, because the trial court was without authority or power to render it.
In my opinion, this judgment of conviction rests not upon a verdict written by a jury, where a jury trial was accorded, but upon a verdict written, first, by the trial court and, second, by the approval of that verdict by my brethren.
This should not be. In my opinion, the cases I here cite so demonstrate. If my brethren are not going to follow those cases, they should, in all fairness, overrule them and not permit them to remain as any part of the law of this state.
I respectfully dissent.