(Concurring).
*312I concur fully in the expressions and conclusions of law in Judge Morrison’s opinion. I am so impressed with the reasoning of Judge Graves in his dissenting opinion that I feel a necessity that I express myself with reference to the same.
Except for the fact that he has, in my opinion, taken a wrong view of the Suspended Sentence Law and has entirely overlooked the Act, of the 42nd Legislature, 1931, p. 65, ch. 43, Sec. 4 (together with the amendment of 1941) his opinion would be logical. In view of that act I think he has reached the wrong conclusion.
Prior to 1931 the matter of suspended sentence was wholly with a jury. By the act referred to an additional provision was given, from which I quote the following: “When a defendant has entered a plea of guilty and has waived his right of a trial by Jury, and has consented to be tried by the Court and there is a conviction of any felony, except * * *, and the punishment assessed by the court shall not exceed five years, the Court shall have the right and power to suspend the sentence of the defendant during his good behavior; * * *.” Further provisions of the act prescribe conditions not materially different from those in the original act as found in Article 776, Vernon’s Ann. C.C.P. The concluding part of the article under discussion, which is denominated Art. 776a by Vernon, provides that this act shall not be construed as repealing what is known as the Suspended Sentence Act, but is to be construed as in addition thereto.
Another section of the act as further amended in 1941 is incorporated in Article 777, Vernon’s Ann. C.C.P. as follows: “1. When sentence is suspended, the judgment shall be that sentence of the judgment of conviction shall be suspended during the good behavior of the defendant. (Emphasis added.)
“2. By ‘good behavior’ is meant that the defendant shall not be convicted of any felony, or any character or grade of the offenses of theft, embezzlement, swindling, conversion, theft by bailee, or any fraudulent acquisitions of personal property. Acts 1931, 42nd Leg. p. 65, ch. 43, Sec. 4; Acts 1941, 47th Leg., p. 1334, ch. 602, Sec. 1.”
It will Be observed that prior to 1941 the suspended sentence could be revoked only when the party had been convicted of a felony. By the Act of 1941 there was added the provision that the the suspended sentence could be revoked when one was *313convicted of theft, embezzlement, etc., even though it be a misdemeanor.
It appears, therefore, perfectly clear that the district judge has the right to suspend a sentence in a plea of guilty, such as the case now before us, and that he had such authority prior the passage of the act authorizing the judge to probate a sentence under stipulated conditions. It is further provided that he may revoke the suspension on convictions — not otherwise. To my mind, the two acts are independent. Neither one affects the other and the procedure as revealed by the record in this case was under the Suspended Sentence Law and no provision of the Probation and Parole Law is applicable under the facts testified to by the district judge describing the procedure in this case. Had he probated the sentence and prescribed the conditions, which he should make of record so that a successor in office should be able to carry out the terms, and if he had stipulated a condition covering drunkenness, his order as found in the record would be within his power. As we find the record, none of the provisions of the Probation and Parole Law have been complied with. He did not retain supervision of the party; prescribed no conditions of conduct, as prescribed in Sec. 3 of the act; and named no term for any probation as provided in Sec. 4.
I concur in the view that he had no authority to revoke the suspended sentence which he did give with all of the formalities required by law, including the recognizance entered into which is not required in the case of probation.