Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
The indictment is regular and the evidence is sufficient to support the verdict.
In the brief and motion for new trial, one question is raised, namely: that the court failed to advise the appellant of his right to have a plea asking for a suspended sentence prepared and filed, Where one whose offense is within the purview of Article 865b relating to the suspended sentence is without counsel, it is the duty of the court to inform him of his right to make an application to have the jury suspend his sentence, and "the court shall appoint counsel to prepare and present the same if desired by the defendant." In a case where there exists no legal impediment to the granting of the suspended sentence, it would doubtless be a serious error for the trial court to ignore this provision of the statute. In support of the judgment, however the presumption obtains that the court did not ignore it, and to overturn this presumption, the contrary must affirmatively appear upon appeal. Appellant was represented by counsel on the motion for new trial, but at the trial he was without counsel and the court failed to advise him of the aforementioned right. The offense with which he was charged was not within the operation of the suspended sentence statute if the accused was, in fact, over twenty-five years of age. It is not shown by a bill of exceptions that he was under that age. The motion is not verified by affidavit and contains no recital touching the age of the appellant at the time of the trial. It should be made known to this court that he was under twenty-five years of age at the time of his trial, otherwise the suspended sentence law would have no application to him and the action of the trial court deprived him of no right, and the granting of a new trial would serve no useful purpose. His age was a matter within his knowledge, and the record being without averment or affidavit that he was not above the age of twenty-five years, we are constrained to hold that there was no error in refusing the motion for new trial and to order an affirmance of the judgment, which is accordingly done.
Affirmed. *Page 435