ON MOTION FOR REHEARING.
GRAVES, Judge.*473It is urged by appellant that in our original opinion herein, we were in error in holding that appellant waived his right to have the jury instructed relative to a suspension of sentence in the event of a conviction. He insists that such a failure is a fundamental error and one that can be raised for the first time in a motion for a rehearing in this appellate court. We cannot agree that a failure to object to the trial court’s charge is a fundamental error. To hold such would obliterate the provisions of Art. 658 and 666, C. C. P., as set forth in our original opinion and finally do away with the necessity of any objections to the trial court’s charge.
We are cited to the case of Avery v. State, 121 S. W. (2d) 992, as announcing the doctrine that a failure of the trial court to charge .or submit to the jury a charge relative to the suspension of sentence is fundamental error and can be • raised at any time. In that case the accused filed his application for a suspended sentence but the trial court failed to submit such to the jury, and the accused “in due time objected to the court’s charge because it failed to submit to the jury all the issues raised by the pleadings and the evidence, and again in his motion for a new trial urged it as error.” It was there held that the judge should have submitted to the jury the accused’s application for a suspension of sentence in the event of a conviction, but it will be observed that such failure was. properly and timely called to the trial court’s attention. The case of Tonnahill v. State, 90 Tex. Cr. R. 184, 234 S. W. 75, is quoted as thus holding, and we agree therewith in that particular holding. However, we are also cited to the ease of Baker v. State, 129 S. W. (2d) 317, which is based upon the following facts: Baker was charged with the theft of turkeys which, although classed as a felony, could have been punished by a fine and imprisonment in the county jail, or confinement in the state penitentiary. The accused filed a timely request for a suspension of sentence in the event of a conviction, and the trial court, construing the suspension of sentence to apply only to the felony punishment, instructed the jury in substance that they could suspend the sentence only in the event of their finding of guilt and the assessing of a penalty of confinement in the penitentiary for not more than a certain period of years. This was contrary to a line of decisions cited in the Baker case, supra. However, in such case this court went further and without it being necessary to the decision of that case, had the following to say:
“This was tantamount to an instruction that if they assessed his punishment at a fine and confinement in the county jail, *474they could not recommend the suspension of sentence. This, of course, was erroneous and in our opinion constitutes such error as he might raise for the first time in this court even on a motion for rehearing.”
The italicized portion of this statement went too far and left out any consideration relative to a waiver of the right to the submission to the jury of a request for a suspension of sentence. This matter can be waived in many ways, and for different reasons. The proof might not be made, or one might see fit to withdraw the same; it might not be properly and timely requested; it could be withdrawn, or it could be waived by a failure to object and except to the trial court’s charge.
Article 11, Vernon’s Ann. Tex. C. C. P., provides as follows :
“The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case.” (See cases there cited.)
Insofar as it is said in the case of Baker v. State, supra, that the failure to object to the trial court’s charge can be raised for the first time in this court even on a motion for a rehearing, the same was dicta and is herein expressly overruled.
It is suggested to us in argument only that if the death of this young lady was caused by accident or mistake, then the statute, Art. 39, P. C., would control. We note, however, that Art. 1228, P. C., provides as follows :
“Homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means.”
We express the opinion that appellant’s conduct proven on the trial hereof shows that he was not prosecuting a lawful object in a lawful manner.
The motion for a rehearing will be overruled.