No. 2912. | Tex. Crim. App. | Mar 11, 1914
Appellant was convicted of manslaughter, his punishment being assessed at two years confinement in the penitentiary.
The question of suspension of sentence was passed on under submission by the court to the jury. The jury found that appellant had not heretofore violated the law, etc., but failed or refused to suspend his sentence. That is the only question presented for review. It may be said, it is presented from two viewpoints, first, that the law is unconstitutional, and, second, that if not, then the law should be so construed that in all cases where the jury find the defendant has not heretofore violated any laws of his country, that the suspension will follow as a matter of law. The constitutionality of the law has been passed on in Baker v. State, 70 Tex.Crim. Rep., 158 S.W., 998" date_filed="1913-06-11" court="Tex. Crim. App." case_name="Baker v. State">158 S.W. Rep., 998, in an opinion by Judge Harper, and that opinion has been followed. In Roberts v. State, 70 Tex.Crim. Rep., 158 S.W., 1003" date_filed="1913-06-18" court="Tex. Crim. App." case_name="Roberts v. State">158 S.W. Rep., 1003, in an opinion by Judge Prendergast, it was held that it was only within the province of the jury to say whether or not the sentence should be suspended; in other words, it was a matter to be determined as a part of the punishment or suspension of punishment to be ascertained and determined only by the jury. That case has been followed in other cases. On the two questions see Baker v. State, supra; Roberts v. State, supra; Potter v. State, 71 Tex.Crim. Rep., 159 S.W., 846" date_filed="1913-06-27" court="Tex. Crim. App." case_name="Potter v. State">159 S.W. Rep., 846; Monroe v. State, 70 Tex.Crim. Rep., 157 S.W., 154" date_filed="1918-05-14" court="Tex. Crim. App." case_name="Ex Parte Welburn">157 S.W. Rep., 154. It is deemed unnecessary to review the question.
The judgment is affirmed.
Affirmed.
[Rehearing denied April 15, 1914. — Reporter.]