[No. 3192.

July 25, 1927.

Rehearing Denied Feb. 2, 1928.]

#### STATE v. YOUNG.

[263 Pac. 515.]

Reese & Reese and Ed S. Gibbany, all of Roswell, for appellant.

*213Fred E. Wilson, Atty. Gen., and Robert C. Dow, Asst. Atty. Gen., for the State.

OPINION OF THE COURT

BICKLEY, J.

Appellant was convicted by a jury of unlawfully and feloniously operating a motor vehicle on the public highways of this state while in an intoxicated condition.

This case is ruled by our decision in State of New Mexico v. B. Y. Miller, 33 N. M. 200, 263 P. 510, in all respects except as to one point not raised in that case. In the instant case; the jury followed its verdict of guilty with the recommendation of clemency. The court sentenced the defendant to incur the maximum penalty provided by the statute. In addition to the assignments of error which were similar to those in State v. Miller, supra, appellant assigns error as follows:

> “The judgment and sentence of the court is excessive, the court having failed to give any consideration to the recommendation of clemency by the jury.”

The point must be ruled against appellant on the authority of State v. Carabajal, 26 N. M. 384, 193 P. 406, 17 A. L. R. 1098, followed in State v. Brigance (N. M. 1926) 246 P. 897, there declaring: “The recommendation is merely advisory and general.”

Finding no reversible error in the judgment, it must be affirmed, and it is so ordered.

PARKER, C. J., and WATSON, J., concur.

ON MOTION FOR REHEARING.

BICKLEY, J.

The motion for rehearing in this cause is identical with motion for rehearing in State of New Mexico v. B. Y. Miller, 33 N. M. 200, 263 P. 510, and is overruled for the reasons stated in the opinion on the motion for rehearing in that case, and it is so ordered.

PARKER, C. J., and WATSON, J., concur.