#### McMURRAY v. STATE.

No. 14686.

Court of Criminal Appeals of Texas.

Jan. 13, 1932.

J. Lee Cearley, of Cisco, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

*218HAWKINS, J.

Conviction is for burglary, punishment being assessed at two years in the penitentiary.

Appellant entered a plea of guilty. It appears that appellant bad no counsel to represent him at the time be entered bis plea. He afterwards secured counsel, and in the motion for new trial it is averred that be was not informed by the court that be bad a right to make and file an application for suspended sentence. Upon a bearing on the motion, appellant and the district attorney gave testimony, which is brought forward. On direct examination, appellant testified as follows:

> “When I was brought before the court Monday morning, the 11th, I bad not been informed that I was entitled to a suspended sentence. No one informed me that I was entitled to file an application for a suspended sentence in this case. If I had been so informed I would have attempted to file one. No one informed me that the court was bound by law to appoint counsel to prepare an application for a suspended sentence. I did not know that was the duty of the court under those circumstances. If I had known that I was entitled to have counsel appointed I would have asked the court to have counsel appointed for me.”

On cross-examination be said that he bad talked to Mr. Taylor (the district attorney) at the jail, and that Mr. Taylor asked what be wanted to do, and that appellant said he wanted to plead guilty; that be knew of the suspended sentence, and that application could be made for it. He testified further, as follows:

> “When I came over here to the courthouse I bad another conversation with Mr. Taylor, and be told me what questions the court would ask me on my plea of guilty. I said I wanted to make application for a suspended sentence and Mr. Taylor said I couldn’t ask for one. He said I couldn’t get one. I didn’t know exactly that I could make an application. for a suspended sentence. Mr. Taylor told me that because of my past record and the fact that I bad been convicted of theft; be said that be would have to contest the application and be didn’t believe that I could get it. I said I would like to have a suspended sentence. Mr. Taylor told me that be was going to contest my application because of my conviction of theft in the county court. I then pleaded guilty, all right. After my conversation with Mr. Taylor I understood that I couldn’t get a suspended sentence. I understood that I wasn’t allowed to ask for a suspended sentence. That is what I thought, I think Mr. Taylor said I couldn’t get one. I wanted a suspended sentence all the time.”

Mr. Taylor testified that in bis conversation at the jail appellant told him he wanted to plead guilty and take straight time. His evidence as to what occurred later in the courthouse follows;

> “I came back to the courthouse and after Mr. Lee, the jailer, brought them over I then talked further to McMurray and advised him of the questions that he would be asked by the court on bis plea of guilty. He then said something in substance that be wanted to make application for a suspended sentence, or believed be would. I said that is your privilege but I am going to oppose the application because of your record and the fact that you have been convicted for theft; and I am going to try to keep you from getting it on those grounds. He then said be just believed be would go ahead and enter a plea of guilty without the application. I believe I bad no further conversation with him about the matter. I believe also I told him that in my opinion I didn’t think be would get a suspended sentence because of bis record, if it were contested and I intended to make a contest of bis past record. I told him that if be wanted to plead guilty and take straight time I would recommend to the jury the lowest sentence. * * * The court didn’t tell him that the offense on which be was indicted was one that be was entitled to file an application for a suspended sentence. I bad already informed the court before that time that the defendant did not desire to make application for a suspended sentence.”

Doubtless, the district attorney acted in perfect good faith in advising appellant that in bis (the district attorney’s) opinion appellant could not secure a suspended sentence, and also in informing the court that appellant did not desire to make application for suspended sentence. On the other band, it can readily be understood bow, after bis conversation with the district attorney, appellant, ignorant of bis rights in the premises, and with no attorney to advise him, reached the conclusion stated by him in bis testimony.

Art. 776, C. C. P. which relates to suspended sentence, in part, reads:

> “ * * * When the defendant has ho counsel, the court shall inform tbe defendant of bis right to make such application [for suspended sentence], and the court shall appoint counsel to prepare an'd present same if desired by defendant.”

It has been said that “where there exists no legal impediment to the granting of the suspended sentence, it would doubtless be a serious error for the trial court to ignore this provision of the statute.” Holdman v. State, 94 Tex. Cr. R. 433, 251 S. W. 218. Prom other cases, it is clear that compliance with the statute is demanded. Moses v. State, 94 Tex. Cr. R. 353, 251 S. W. 219; Noble v. State, 112 Tex. Cr. R. 541, 17 S.W.(2d) 1063; Barton v. State, 107 Tex. Cr. R. 75, 294 S. W. 1112. The statute in question has imposed upon the trial judge, not the district attorney, the duty of advising an accused without counsel of bis rights under the suspended sentence law, and *219to appoint counsel to prepare and present the application to the jury. It follows that the responsibility is likewise on the court, and not on the district attorney, to determine whether the accused has waived making an application for suspended sentence, after being advised of his rights. In Moses’ Case, supra, the district attorney prepared and filed for accused an application for suspended sentence, but resisted it before the jury. It was held that his office imposed upon him the duty of representing the state, and that he could not at the same time represent the accused. If the statute in question had been complied with, the question now being considered would not have arisen. Doubtless, if the court had advised appellant of his legal rights, the court would have discovered appellant’s wishes, and would have appointed counsel to prepare and present an application for a suspended sentence. It is impossible for this court to know what evidence might have been presented upon that issue, or what the jury’s action would have been regarding it. We are likewise unable to say that the failure to comply with the .statute did not result in injury to appellant.

The judgment is'reversed, and the cause remanded.'