Walker v. State

• Decision Date: 14 October 1914
• Docket Number: (No. 3235.)
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 1156

WALKER v. STATE.

(No. 3235.)

Court of Criminal Appeals of Texas.

October 14, 1914.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Handy Walker was convicted of manslaughter, and appeals. Affirmed.

Hawkins Scarborough and W. W. Ballew, both of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of manslaughter for killing his wife, and his punishment fixed at three years in the penitentiary. He properly filed his plea for a suspended sentence. The court submitted the question to the jury and told them that, if they found him guilty and assessed his punishment at five years or less, to find, (1) if he had ever been convicted of a felony in this or any other state, and (2) whether his reputation was good or bad, and if they found both of these questions in the affirmative that they could, in their discretion, if they saw fit, recommend that his sentence be suspended, and, if they so desired, to so state in their verdict. The jury returned a verdict merely finding him guilty of manslaughter and assessing his punishment at three years, saying nothing about the question of the suspension of his sentence. This verdict was received. He made no objection whatever to it at the time, nor did he then in any way seek to have the jury find a verdict on said issue or any of the matters necessary to find in his favor thereon. The verdict was rendered May 6, 1914. On May 8th he filed his motion for a new trial, but at that time and therein made no complaint whatever about the verdict as to suspension of sentence. For the first time, on May 16, 1914, in his amended motion for new trial he complains in this particular.

It would have been proper for the jury to specifically find, as directed by the court, on this question and in the several particulars as told by the court, but he cannot sit by and have the verdict received and the jury discharged, and, when it is too late for the court to properly remedy the matter in the trial, complain of the failure of the jury to find on said matters. This court in many cases has held that, where the court submitted the suspended sentence to the jury, and the jury made no finding thereon, or where they found that he had not before been convicted of a felony, and that his reputation was good, but failed and omitted to make any recommendation of the suspension of the sentence, that the presumption was that the jury refused to recommend a suspension, and have all the time sustained such verdicts and judgments. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; King v. State, 162 S. W. 890; Bowen v. State, 162 S. W. 1146; Cook v. State, 165 S. W. 573.

In a still more recent case (Mills v. State, 168 S. W. 88) we held, in effect, that when it was shown by proper bill, as it was in that case, that the jury could not agree as to a finding on the suspension of sentence, and the verdict itself showing that fact, that it was error for the court to refuse to require a finding or grant a new trial when he received such verdict. But, as is stated in that case, proper objection was timely made, and the fact shown that the jury could not agree upon that issue and expressly so stated in their verdict, but that case is no authority for setting aside the verdict in this case, because no objection was made at the proper time, and the record nowhere, even now, shows that the jury failed or refused to agree upon that issue.

Several hours — perhaps five — after the killing, appellant told Otto Simmons that he was not going to be arrested; that all he wanted was one shot at the constable (a white man). The court, over appellant's objection that this evidence was not res gestæ and irrelevant, immaterial, and inadmissible, properly admitted it. Evidence of resisting an arrest is always...