Defendant entered a plea of guilty to a charge of transporting intoxicating liquor and asked for a suspended sentence. After hearing the evidence the jury fixed his punishment at one year in the penitentiary but failed to suspend the sentence.
By the terms of Sec. 2d, Chap. 61, 1st Called Session 37th Legislature, the benefit of suspended sentence is denied a person over twenty-five years convicted of the offense for which defendant was being tried. Exception was taken to the charge upon the issue of suspended sentence. We do not discuss the point for the reason that defendant was not entitled to have that issue coxrobert@example.com. The offense was alleged to have occurred in December 1923, but the case was not tried until March 14, 1924. The evidence shows defendant was born September 26, 1898, making him five months and eighteen days over twenty-five years of age at the time of trial. Age at time of trial controls and not at the time the offense was committed or indictment returned. Kitchen v. State, 267 S.W. 497.
The judgment is affirmed.
Affirmed.
                     ON MOTION FOR REHEARING
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