Thе conviction is for the unlawful possession of equiрment for the manufacture of intoxicating liquors; punishment fixed at confinement in the penitentiary for a period of one year.
The appellant, preliminary to announcement of ready for trial, prepared and filed, in accordance with Article 865b, a plea seeking to have the jury determinе whether his sentence should be suspended in the evеnt of conviction. Article 717 of the Code of Crim. Proc. gives the accused, through his counsel, the privilegе of stating to the jury, “the nature of the defense relied upon by him and what facts he expects to prоve in their support.” Availing himself of this privilege, counsel began to relate the facts which he expеcted to prove in support of his plea for a suspended sentence when the court interrupted, stating that he ¿id not believe the case to be one coming within the purview of the Suspended Sentence Raw, and remarking: “This is ás good a case as any to test the law. I will not let you go into the matter of thе suspended sentence.” Exception was resеrved, and the issue of suspended sentence was not submitted to the jury, though there was evidence introducеd that he bore a good reputation, and in developing his defenses, facts which might have been regаrded by the jury as mitigating the offense were introduced. The plea of suspended sentence appears to have been treated as having been eliminatd by the action of the trial court mentioned. If the plea was a part of the case, аppellant’s right to have his theory stated by his counsel, in accordance with Article 717, seems unquestioned. Poole v. State,
Reversed and remanded.