Crawford v. State , 149 Tex. Crim. 219 ( 1946 )

Appellant, in his motion for a rehearing, claims that in the original disposition of this case, we misunderstood his contention. He asserts that he did not mean to impeach the verdict of the jury or that the jury misunderstood or misconstrued the court's charge relative to the effect of a suspension of sentence, but that this contention, then as now, is that the action of the trial court in charging Art. 777, C.C.P., and in failing to instruct the jury in connection therewith relative to Art. 780, C.C.P., was reasonably calculated to and did lead the jury to the conclusion that a suspension of sentence would be a burden upon him for the rest of his life; that therefore, rather than to place such a burden upon him they declined to recommend a suspension of sentence, which resulted in serious injury to him. Since no objection was addressed to the court's charge and no special instruction on the subject was requested, the trial court had a right to assume that he was satisfied with the charge. If he had desired a modification or amplication thereof, he should, in due time, have objected thereto or requested a special charge. Having failed to do either, he cannot, after the verdict has been rendered and received, complain thereof for the first time in a motion for a new trial.

Since this case was submitted, on motion for a rehearing, appellant has filed a supplemental brief in which he asserts that a discussion by some of the jurors as to the effect of a suspension of sentence constituted new and additional evidence not submitted to them under the ruling of the court, and cites us to the case of Gray v. State, 39 S.W.2d 625. That case is readily distinguishable from the instant case. In that case the juror stated that the rooms to which the accused took his wife and the prosecuting witness were rooms in a house of prostitution, occupied by lewd women, and the place had a bad reputation, when there was no evidence of that character introduced upon the trial. In the case of Stallworth v. State,186 S.W.2d 252, other evidence was brought to the attention of the jury while deliberating on the case. In the instant case, this is not true. Here, the only matter brought to the attention of the jury was the probable effect of the suspension of sentence.

Believing that the case was properly disposed of on the original submission, the motion for rehearing is overruled.

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.