Brown v. State , 105 Tex. Crim. 586 ( 1926 )

In the motion for rehearing appellant insists upon his original proposition that the language used by the legislature to the effect that one who had been granted a suspended sentence could be deprived of its benefits if he was subsequently convicted of a felony means the conviction of a felony in this state only. In support of this proposition he cites cases holding that witnesses to be competent to testify because of conviction for felony offenses must be shown to have been convicted of felonies in the state where called as a witness. We think it unnecessary to discuss such authorities, believing they do not apply under the wording of the statute being considered. Amaya v. State, 87 Tex.Crim. Rep., contains some views of this court on an analogous question. Construing the law as a whole we are constrained to adhere to the conclusion announced in our original opinion. We cannot bring ourselves to believe that the legislature intended to deprive one who had been convicted of a felony in another state of a suspended sentence in the first instance, and at the same time permit him to retain that benefit if he should subsequently be convicted of a felony in some other jurisdiction.

Appellant asserts in his motion for rehearing that the trial court had no right to recall the suspension of sentence in this instance because the judgment in the federal court was not a final judgment. As we understand it, he bases this assertion upon the provision of the federal statute giving one convicted six months in which to apply for a writ of error. While this may be true it does not follow by any means that the judgment was not final. In the absence of information that a writ of error had been granted and a supersedeas directed against the execution of the judgment we understand that the judgment of conviction in the federal court is regarded as final. U.S. v. Whittier, 11 Biss. 356, 13 Fed. 534; Hudson v. Parke,156 U.S. 276, 39 L. Ed. 425; In Re McKanzie, 180 U.S. 535, 45 L. Ed. 657; In Re Claasen, 140 U.S. 200, 35 L. Ed. 409, 17 Corpus Juris, Sec. 3380.

The motion for rehearing is overruled.

Overruled.