Kitchen v. State

Conviction is for the sale of intoxicating liquor; punishment, one year in the penitentiary.

Appellant filed application for suspended sentence, in which it was averred that he was less than 25 years of age when the offense was committed and the indictment returned, but did not allege that he was under such age at the time of trial; because of failure to so allege the state moved to dismiss the plea. The court found upon hearing the motion that appellant was over 25 years of age at the date of trial, but under said age when the offense was committed and indictment returned. Upon ascertaining these facts the plea for suspended sentence was stricken out, and this action of the court is assigned as error.

Section 2d, Chap. 61, 2d C.S., 37th Leg., provides that no person over twenty-five years of age who may be convicted of violating any provision of the act prohibiting the manufacture, sale, etc. of intoxicating liquor shall have the benefit of the suspended sentence law. We think the age at the time of trial controls and that the court committed no error in striking out the plea of suspended sentence. In Davis v. State, 93 Tex. Crim. 192,246 S.W. 395, it was said:

"By the terms of Chapter 61, General Laws of the First and Second Called Sessions of the Thirty-seventh Legislature, the benefit of suspended sentence is denied to any person convicted of a violation of the present liquor law, who at the time of suchconviction is over twenty-five years of age.'

This was re-affirmed in Blonk v. State, 93 Tex.Crim. R.,248 S.W. 375. In Holdman v. State, 94 Tex.Crim. R., 251 S.W. 218, is found the following statement:

"The offense with which he was charged was not within the operation of the suspended sentence statute if the accused was, in fact, over twenty-five years of age. It is not shown by a bill of exceptions that he was under that age. The motion is not verified by affidavit and contains no recital touching the age of the appellant at the time of the trial. It should be made known to this court that he was under twenty-five years of age at thetime of his trial, otherwise the suspended sentence law would have no application to him and the action of the trial court deprived him of no right, and the granting of a new trial would serve no useful purpose."

Holdman's case is cited with approval in Davidson v. State,95 Tex. Crim. 638. See also Rhodes v. State, 262 S.W. 753; Boyd v. State, 262 S.W. 499; Davidson v. State, 255 S.W. 404; Boortz v. State, 255 S.W. 434; Hooper v. State, 250 S.W. 694.

We find no statement of facts in the record and the absence thereof renders it impossible for us to pass upon the objection to the charge defining a "sale." What would be a proper definition under some state of facts would be entirely inapplicable under other circumstances and not being apprised of the evidence in the case we must assume the charge given was a proper one. The same applies to the complaint at the reception of certain evidence set out in bill of exception number two. The bill states the grounds upon which objections to the evidence were urged, but the existence of the facts upon which the objections were based is not certified, necessarily in this condition of the bill and in the absence of the facts proven this court has no way of ascertaining the force of the complaint.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.