Appellant was convicted in the district court of Jasper county of unlawfully having in his possession certain equipment for making intoxicating liquor, and his punishment fixed at one year in the penitentiary.
By his bill of exceptions' No. 1 appellant complains of the refusal of his special charge submitting his right to a suspended sentence. The record discloses that an application for suspended sentence was filed and presented to the trial court by appellant, and that no reference thereto appeared in the main charge, and that a special charge submitting said issue was refused.
There is no question but that one on trial for a violation of the Dean Law (Laws 1919, c. 78) may have an application of the law of suspended sentence filed and presented, and in a proper case may be given a suspended sentence as in other felony cases. There is, however, no better settled rule than that to entitle the accused to a suspended sentence, and the submission of such issue, the evidence before the trial court must affirmatively show that he has never before been convicted of a felony. An examination of the record in the instant case reveals the fact that there is not a word of proof supporting the proposition just mentioned. But two witnesses gave testimony, one for the state and one for appellant.
Nothing appears in the testimony of the state witness in any wise relating to the question of appellant’s former conviction, and the only matter appearing in the testimony of appellant’s witness, one Hancock, is that he had known appellant for many years, and that his reputation was good. This is not enough to raise the issue or justify the submission of the right to a suspended sentence to the jury. They are the arbiters as to whether such sentence shall be given, and appellant’s right thereto cannot he raised in a given ease except upon proof of the fa't that he had not theretofore been convicted of a felony. Under our statutes, when, the issue is thus raised, evidence of reputation may be introduced as a matter of inducement to the jury, but in no case should the issue of suspended sentence be submitted in the charge when the only evidence bearing upon the question is that the accused has borne a good reputation. Simonds v. State, 76 Tex. Cr. R. 487, 175 S. W. 1064; Onstott v. State, 75 Tex. Cr. R. 72, 170 S. W. 301. It thus appears that no error was committed in the refusal of said special charge.
Special charge No. 1 given at the request of the state was to the effect that the state need not offer proof of the fact that the equipment found in the possession of appellant was had by him for medicinal, sacramental, scientific, etc., purposes. After mature reflection we have come to the conclusion that the burden of proof as to matters contained in the exceptions set forth in the Dean Law rests upon the accused, and that the state need offer no proof of the negatives necessary in the indictment. P. Robert v. State, 234 S. W. 89, this day decided.
No other complaint appearing in the record, and finding no error, the judgment of the trial court will be affirmed.