
    JOHNSON v. STATE.
    (No. 9377.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.)
    Criminal law <&wkey;M038(l) — Objection to court’s action, with reference to charging jury, made first time in motion for new trial, will not be considered.
    Objection to court’s action, with reference to charging jury, made first time in motion for new trial, will not be considered on appeal.
    Commissioners’ Decision.
    Appeal from District Court, Crosby County ; Clark M. Mullican, Judge.
    Lenzy Johnson, alias Paul Quinn, was convicted of negligent homicide, and he appeals.
    Affirmed.
    W. P. Jones and J. A. Buck, both of Cros-byton, for appellant. /
    
    Sam D. Stinson, State’s Atty., -of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

Tbe appellant was convicted in the district court of Crosby county for the offense of negligent homicide, and bis punishment assessed at a fine of $1,500.

Tbe evidence, from tbe state’s standpoint, was sufficient to show an unprovoked killing, while that from the defendant’s standpoint was possibly sufficient to raise the issue of negligent homicide. Upon the issues thus presented, tbe appellant was given tbe benefit of one of his chief defenses.

There are but two bills of exceptions in tbe record, and these each complain at the action "of the court in instructing the jury orally in response tó a question from them as to how much the defendant would receive a day for laying bis fine out in jail. To the first bill of exception, the court states as a qualification:

“All of the above occurred in the presence and hearing of the defendant- and his counsel, and at the instance, request, and suggestion of his attorney, and with the free acquiescence of the defendant and his counsel. Neither the defendant, nor either of his attorneys, in any manner objected, protested, excepted, or in the least complained except in his amended motion for a new trial.”

The second hill of exceptions contains the qualification that the judge was asked a question by the foreman of the jury, and that he verbally answered the same, and that this all occurred and transpired in the presence and hearing of the defendant and his two attorneys, who were in the courtroom, and to which action of the court neither the defendant nor either of his attorneys in any manner protested, objected, or in the slightest complained, save and except in his amended motion for a new trial, and, as above stated, that the answer made to the foreman was made at the suggestion of one of the defendant’s counsel. Appellant accepted these bills of exceptions, with the court’s qualifications as above stated attached thereto, and failed to in any manner except to the qualifications. Under this condition of the record, the appellant waived any right that he may have had to complain at the court’s action in the particular stated. Appellant will not he permitted to sit idly by and not reserve an exception to the court’s action with, reference to charging the jury and then be heard to complain of the same for the first time in a motion for a new trial.

There being no error properly preserved in this record, it is our opinion that the judg-, ment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     