Johnson v. State

169 S.W. 1151, 74 Tex. Crim. 627, 1914 Tex. Crim. App. LEXIS 383

Opinion

PREHDERGAST, Presiding Judge.

Appellant was convicted for unlawfully pursuing the occupation or business of selling intoxicating liquors in prohibition territory and her punishment fixed at the lowest prescribed by law.

There is no bill of exceptions, nor statement of facts. There are but two questions mentioned in the mqtion for new trial. The first is, that the verdict is not supported by the evidence. Of course, in the absence of a statement of facts this can not be considered.

The other is, “the court erred in overruling suspension of sentence.” The verdict of the jury found the appellant guilty and fixed her punishment; and, further, “We further' find that the defendant has never before been convicted of a felony in this State, or any other State.” The suspended sentence law requires that the jury shall recommend the suspension of sentence. The court can not suspend, unless the jury so recommend in the verdict. This court has so often decided that in verdicts precisely as this, the court could .not suspend sentence, that we think it unnecessary to further review the question. We cite only some of the cases. Roberts v. State, 70 Texas Crim. Rep., 588, 158 S. W. Rep., 1003; Potter v. State, 71 Texas Crim. Rep., 209, 159 S. W. Rep., 846; King v. State, 72 Texas Crim. Rep., 394, 162 S. W. Rep., 890.

Affirmed.