Appellant was convicted of burglary and assessed the lowest punishment.
The evidence was amply sufficient to sustain the verdict. We see no necessity of reciting it.
Appellant, on the eve of the trial, filed his sworn plea seeking a suspension of his sentence in case he was convicted. When this is the case the statute enacts (art. 865, Vernon's C.C.P.) that "the Court shall permit testimony . . . as to the general reputation of defendant to enable the jury to determine whether to recommend a suspension of sentence and as to whether appellant has ever before been convicted of a felony." The statute also enacts (art. 856b): "That in no case shall sentence be suspended except when the proof shall show, and the jury shall find in their verdict, that the defendant has never before been convicted of a felony in this State, or any other State."
We have repeatedly construed these statutes in our previous decisions. It is unnecessary to collate them here.
In the particular mentioned, we think the statute means what it says and says what it means; that is, that it is encumbent upon an accused himself when he pleads for a suspended sentence to prove that he has never before been convicted of a felony in this or any other State. Under the statute, no presumption is indulged in his favor that he has not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the issue of suspended sentence to the jury for a finding at all, and that was the case in this instance.
Wherever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says, then the court shall permit testimony as to the general reputation of the accused to enable the jury to determine whether or not to recommend a suspension of the sentence. We think this is clear and means what it says. And taking *Page 531 the whole statute and the object and purpose of it, we have held, and still hold, that not only can the State introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury, from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying.
Practically in all records coming before this court where an accused has plead for a suspended sentence, such plea, as in this instance, is filed on the very eve of the trial. The State can not, and does not, know that the accused will file such plea and is, therefore, frequently ill prepared, if prepared at all, to offer proof on such plea to disprove it. Hence, it is more necessary in order to reach the real intent of the law that the court shall be liberal to the State in admitting testimony on this issue. The State is not bound to wait until after an accused himself offers proof that he has committed no felony and of his good reputation, habits, etc., but may introduce such proof at the time of proving the offense itself. However, of course, if when the State offers such proof the accused should then withdraw his plea for a suspended sentence, the court should permit no proof on the subject.
Appellant has some bills of exceptions to the introduction by the State of some testimony along this line. They are qualified in a very lengthy statement by the trial judge. We think it unnecessary to recite this here, and we think it unnecessary to discuss the said suspended sentence law in a general way other than we have done, but think it necessary only to discuss it to the extent to decide the questions raised herein. We think the testimony in this case, without contradiction, affirmatively shows that appellant's general reputation as a peaceable and law-abiding man, and in some particulars also, was bad, and he offered no proof to show that he had never before been convicted of a felony. Hence, it was proper, as the court did, to refuse to submit that issue to the jury for a finding. Even if the court on that issue admitted pure hearsay testimony, it became harmless in the light of all the testimony and the fact that the jury assessed the lowest punishment.
The court correctly answered the inquiry of the jury when he told them that, under the circumstances, they had no right to pass on the question of recommending a suspended sentence.
There is no reversible error shown by this record
The judgment is affirmed.
Affirmed.
ON REHEARING. June 21, 1916.