
    WALKER v. STATE.
    (No. 3235.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 933) — Verdict—Waiver of Error.
    The right to object to the failure of the verdict to make any recommendation of suspension of sentence was waived where the accused first complained thereof in his amended motion for a new trial filed on May 16th after rendition of verdict on May 6th.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2283-2292; Dec. Dig. § 933.]
    12. Criminal Law (§ 351) — Evidence — Admissibility — Threats.
    Testimony that the accused told the witness several hours after the killing that he was not going to be arrested and that all he wanted was one shot at the constable was admissible to to show a threat to resist arrest, regardless of whether it constituted a part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dee. Dig. § 351.]
    3. Homicide (§ 307) — Submission of Issues —Evidence.
    Where the state’s evidence presented only the question of murder, and the defendant’s evidence raised only the question of manslaughter and accidental killing, the court properly refused to instruct on aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    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.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   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 gestse and irrelevant, immaterial, and inadmissible, properly admitted it. Evidence of resisting an arrest is always admissible against an accused. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 160 S. W. 361. And, of course, a threat to do so is likewise admissible. The question of res gestse does not apply. Such evidence is an admission by an accused, whether res gestse or not.

The only other question urged by appellant is that the court erred in refusing to submit to the jury a proper charge on aggravated assault. There was no error in this. The evidence in no way raised or suggested this offense. The state’s case, without question, raised only an unlawful homicide — murder. That of appellant raised only the question of manslaughter and accidental killing. The court submitted both of these issues, and, in addition, negligent homicide. The jury found against appellant on both negligent homicide and accidental killing, and found him guilty of manslaughter. The evidence shows: That deceased and appellant were husband and wife; she rather a young woman ; he rather an old man. Trouble arose between them. He claimed that she was guilty of improper conduct with another negro man. Their differences resulted in their mutual separation. They divided their property, and deceased went back to her former home, he remaining where he was, or going elsewhere. That on the day of the killing he passed the house where deceased was some 200 yards; she and her woman companion seeing him do so. After he had got that distance, he turned, came back to the house with his gun loaded, and the two women in the house did all they could to prevent hi§ entering it. He demanded that his wife should come out. She refused. He then attempted to force the door open. The two women resisted this. He shot either through the door, or the wall of the house right at it. He claims it was accidentally; the facts would justify the jury to believe purposely. When this shot was fired, the two women left that door. He ran around the house to the other side and forced an entrance through another door. The two women tried to avoid his shooting them, the deceased seeking to get, and remain, behind tfye other woman. In their struggles they ran over a stove and fell upon the floor. The other woman succeeded in getting'up. The deceased did not. From the state’s side, the appellant then, while his wife was lying on the floor helpless, deliberately pointed his gun at her, shot her in the back with a shotgun and killed her. He claimed that he struck her with the gun while she was on the floor and that it was accidentally discharged; that he did not intend to kill her. As soon as he killed her he left the house and went away. There can be no question but that this evidence and none of the other, which is unnecessary to recite, raised or suggested the issue of aggravated assault. Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Yzaguirre v. State, 48 Tex. Cr. R. 514, 85 S. W. 14.

The judgment is affirmed.  