Wyatt v. State, (No. 7526.)

• Decision Date: 07 March 1923
• Docket Number: (No. 7526.)
• Citation: 248 S.W. 1076
• Parties: WYATT v. STATE.
• Court: Texas Court of Criminal Appeals

248 S.W. 1076

WYATT v. STATE.

(No. 7526.)

Court of Criminal Appeals of Texas.

March 7, 1923.

Appeal from District Court, Newton County; V. H. Stark, Judge.

Alzaria Wyatt was convicted of manufacturing intoxicating liquor, and appeals. Reversed and remanded.

J. B. Forse, of Newton, and G. E. Richardson, of Jasper, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Upon conviction for manufacturing intoxicating liquor, appellant's punishment was fixed at one year's imprisonment in the penitentiary.

This is the second time the case has been before us for review. Our former opinion will be found reported in 91 Tex. Cr. R. 299, 238 S. W. 665. The indictment alleged the date of the offense to have been December 27, 1920. The evidence confirms this as the true date. Before announcing ready for trial, appellant filed a written instrument advising the court that he elected to be tried under the law as it was in December, 1920. An application for suspended sentence was filed and proof made thereunder requiring its submission. The learned trial judge declined to submit it on the ground that appellant was more than 25 years of age, believing section 2d of the Acts of the 37th Leg., 1st Called Session, p. 233 (Vernon's Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), amending the liquor law, would apply. In this the court was in error. After the passage of what is known as the Dean Law and up to the time said amendment became effective, parties accused of the violation of its provisions were entitled to the benefit of the suspended sentence regardless of their age. Plachy v. State, 91 Tex. Cr. R. 405, 239 S. W. 979; Brown v. State (Tex. Cr. App.) 242 S. W. 218; Phillips v. State (Tex. Cr. App.) 244 S. W. 146; Wimberly v. State (Tex. Cr. App.) 245 S. W. 431; Ennis v. State (Tex. Cr. App.) 245 S. W. 435; Cortinas v. State (Tex. Cr. App.) 245 S. W. 911. For violations thereof occurring after November 15, 1921—that being the date upon which the amendments of the Thirty-Seventh Legislature became effective—parties over 25 years of age were deprived of the suspended sentence. Appellant should have been tried under the law in operation at the date of the alleged offense, and thereunder had the right to have the question of a suspended sentence submitted for the jury's decision, although he was more than 25 years of age.

The judgment must therefore be reversed, and the cause remanded.