
    COOK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    Rehearing Denied April 15, 1914.)
    1. CbimiNal Daw (§ 978) — Suspension op Sentence — Statutory Provisions.
    .The statute authoi-izing suspension of sentence on recommendation of the - jury is constitutional.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2484, 2485, 2487; Dee. Dig. § 978.]
    
      2. CRIMINAL Law (§ 982) — Suspension of Sentence — Power of Court.
    Under the statute relative to suspending sentence, the question of suspending sentence is for the jury in determining the question of punishment, and, where the jury fails or refuses to suspend sentence, it cannot be suspended, though they find that accused has not previously violated any law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. 982.]
    Appeal from District Court, Montague County; R. H. Buck, Judge.
    Robert Cook was convicted of manslaughter, and he appeals.
    Affirmed.
    W. E. Benson, of Sunset, H. E. Weldon, of Bowie, and J. M. Chambers, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

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, the suspension will' follow as a matter of law. The constitutionality of the law has been passed on in Baker v. State, 158 S. W. 998, in an opinion by Judge Harper, and that opinion has been followed. In Roberts v. State, 158 S. W. 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, 159 S. W. 846; Monroe v. State, 157 S. W. 155. It is deemed unnecessary to review the questions.

The judgment is affirmed.  