Lead Opinion
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 reсommend to the court that his sentence be suspended in this case.” The court in accоrdance with said verdict entered up a judgment adjudging appellant guilty, also reciting and adjudging as follows: “But it appearing to the court that the de *285 fendant, Frank Bierman, had filed herein his requеst 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 bе 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 defendаnt.”
Ho 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 tо prosecute an appeal to this court.
The question arises: has a person аdjudged 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 rеading the suspended sentence Act it was not the intention of the Legislature to give the right of аppeal in this character of case until sentence has been pronouncеd. Article 856 of the Code of Criminal Procedure provides that in all eases of felony (exсept where the death penalty is assessed) sentence shall he pronounced 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 bеfore 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. Ho sеntence having been pronounced, and it being at his instance and request that sentencе was suspended, this appeal must be dismissed, but without prejudice to his right to appeal if sentеnce should hereafter be pronounced on the verdict and judgment.
The appeal is dismissed.
Dismissed.
Addendum
on rehearing.
March 18, 1914.
Appellant has filed a motion for rehearing in which he earnestly insists we were in error in dismissing his appeal; that the judgment entered was a final judgment, although no sentence was pronounced. To so hold would bе in. direct conflict with the provisions of the suspended sentence law. Section 2 reads: “Thе court shall permit testimony and submit the question as to the general reputation of defendаnt to enable the jury to determine whether to recommend the suspension of sentencе, and as to whether the defendant has ever been convicted; such testimony shall be heаrd and such question submitted only upon the request in writing by the defendant; provided, *286 that in all cases sentеnce shall be suspended if the jury recommends it in their verdict. Provided further, that in such cases, neithеr the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided for by section 4 of this Act.” It is thus sеen that by law it is now specifically provided that this shall not be a final judgment. Section 4 reads: “Uрon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for thе arrest of the defendant, if he is not then in the custody of such court, and upon the execution of a capias, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsеquent conviction or convictions, and in such cases no new trial shall be granted in the first cоnviction.” As said in the original opinion, that should circumstances in the future arise whereby under the provisions of this latter section the court should pronounce sentence, then- and not until then does his right of appeal lie under our law.
The motion for rehearing is overruled.
Overruled.