Bierman v. State , 73 Tex. Crim. 284 ( 1914 )

Appellant was convicted of unlawfully selling intoxicating liquor in prohibition territory.

Appellant filed a plea praying that in the event he was found guilty his sentence should be suspended, and the jury returned the following verdict: "We, the jury, find the defendant guilty and assess his punishment at one year confinement in the penitentiary — we find that he has never been convicted of a felony and recommend to the court that his sentence be suspended in this case." The court in accordance with said verdict entered up a judgment adjudging appellant guilty, also reciting and adjudging as follows: "But it appearing to the court that the defendant, Frank Bierman, had filed herein his request in writing under oath for a suspension of the sentence herein and the jury having heard said request and the evidence in support thereof, and having found by their verdict that the defendant was a man of good character, that he had never been convicted of a felony prior to this time and having recommended in their verdict that the judgment and sentence of the court be suspended. It is considered and ordered by the court that sentence of the judgment of conviction herein be and the same is hereby suspended during the good behavior of the defendant."

No sentence has ever been pronounced, but appellant filed a motion for a new trial, and when it was overruled gave notice of appeal, and undertakes to prosecute an appeal to this court.

The question arises: has a person adjudged guilty, and who at his request and instance has had the sentence suspended, the right of appeal before sentence is pronounced. The right of appeal is given in this State upon such conditions and restrictions as the Legislature may adopt, and we think it clear from reading the suspended sentence Act it was not the intention of the Legislature to give the right of appeal in this character of case until sentence has been pronounced. Article 856 of the Code of Criminal Procedure provides that in all cases of felony (except where the death penalty is assessed) sentence shall bepronounced before an appeal is taken, and where the person on trial secures the suspension of pronouncing of sentence, his right of appeal does not arise until sentence is pronounced. If the court should hereafter for any reason call him before the court and pronounce sentence, his right of appeal would then accrue, and he could then prosecute an appeal to this court, but not until then. No sentence having been pronounced, and it being at his instance and request that sentence was suspended, this appeal must be dismissed, but without prejudice to his right to appeal if sentence should hereafter be pronounced on the verdict and judgment.

The appeal is dismissed.

Dismissed.

ON REHEARING. March 18, 1914.