The appellant was convicted of auto theft, and his punishment assessed at two years in the penitentiary. *Page 195
The appellant's defense was an alibi, and in connection therewith he filed an application for suspended sentence.
The record is before us with three bills of exception.
Bill No. 1 complains of the refusal of the court to give in charge to the jury appellant's special charge instructing a verdict of not guilty. There is no error shown in this bill.
Bills Nos. 2 and 3 complain of the refusal of the court to submit to the jury a charge on suspended sentence. The record discloses that the appellant properly filed an application in writing for a suspended sentence, and that while he failed to testify as a witness in his own behalf, he introduced testimony to support his plea. His aunt, Mrs. Ida Crawley, testified on this issue that she had lived in Fort Worth 26 or 28 years; that she had reared appellant and had known him all of his life; that he was 19 years of age, and that he had not been away from her as much as six months at any one time within the past ten years. The deputy district clerk, Claud Wall, testified that the minutes of the Criminal District Court of Tarrant County were in his custody and care, that he had checked over the indictments and felony cases in said county as far back as 1919, and that he failed to find a record of any indictment or conviction against the appellant during said time. This was the evidence relied upon by the appellant as a basis for the requested charge on suspended sentence. It appears from these bills that the court refused to submit this issue to the jury after being properly requested to do so by appellant's counsel. The attorneys for the state before this court have confessed error on this issue, and we think rightly so, under the decisions of this court in Tonnahill v. State,234 S.W. 75, and Taylor v. State, 257 S.W. 1105. Judge Morrow, speaking for this court in the Tonnahill case, supra, after citing the suspended sentence law, stated:
"The right is a valuable one, involving the privilege of having the jury determine whether the appellant should be confined in the penitentiary or given his liberty under the terms of the suspended sentence law. It was one which the court, with the evidence before it, had no discretion to deny," citing Carr v. State, 230 S.W. 405. In the Taylor case, supra, this court, speaking through Judge Lattimore, under a similar state of facts, stated on this issue:
"Where there is testimony reasonably supporting an issue, we think it beyond the province of the trial court to himself pass upon its sufficiency," and reversed the case because of the refusal of the court to *Page 196 submit the issue of suspended sentence to the jury. Under the facts of the instant case, and the authorities cited above, we are of the opinion that the trial court committed reversible error in refusing to submit to the jury appellant's application for a suspended sentence.
For the error above discussed, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.