The opinion
ON MOTION FOR REHEARING
GRAVES, Presiding Judge.
Appellant contends that we were in error in our original opinion herein in that Article 776, C.C.P., provides that in every instance where the accused has never before been convicted of a felony in this or any other state, it becomes the duty of the court, in the event of the punishment not being over five years for certain offenses, to accord the accused the privilege of having his sentence suspended by the judge trying the case and that it is not necessary to have a verdict of the jury suspending such sentence.
In the first place, we find no statement of facts in the instant case and are unable to tell just what the facts are. How *654 ever, we do find an instrument denominated “Defendant’s Requested Testimony,” which evidences that upon the hearing of the motion for a new trial approximately a month and twelve days after the trial was had, the appellant requested, for the purpose of this appeal, that only the following testimony be presented to this court:
“Arthur Lee Brown (defendant), testifying in his own behalf, having first been duly sworn upon oath, testified as follows :
“My name is Arthur Lee Brown. I am the defendant in this case. I have never been convicted of a felony, or anything to send me to the penitentiary, in this state or any other state. I have been convicted in minor law violations a time or two, but that is all.”
The above is all the testimony that is brought forward to this court.
It has always been the holding of this court, ever since the passage of the Suspended Sentence Law, that it was dependent upon the verdict of the jury before the suspension of sentence could be entered by the judge, and that same could not be suspended unless so recommended. That holding has not been challenged within our knowledge until the present time. The legislature has met time after time, has amended this law and changed it in some respects, but has never changed it in the respects set out in Article 776, supra. To now hold that the judge has power to suspend the sentence in a trial before a jury without their recommendation would be to upset a long line of decisions that this court has rendered throughout the years as their understanding as to what Article 776 and the related articles mean relative to the suspension of sentence upon conviction. Numerous legislatures have failed to offer any statute correcting such construction of this, statute, and we see no reason why we should depart from this line of holdings.
Deeming the proper disposition of this case to have been made on the original submission, the motion for rehearing is overruled.