
    ROBINSON v. STATE.
    (No. 11189.)
    Court of Criminal Appeals of Texas.
    Feb. 22 1928.
    Rehearing Denied June 23, 1928.
    (.Criminal law <®=>l 158(2) — Conflicting affidavits as to entry of plea of guilty under agreement not to contest suspended sentence present fact issue which appellate court will not determine.
    Affidavit of defendant’s attorney that assistant county attorney agreed not to contest suspended sentence and latter’s affidavit that plea of guilty was not induced by any such agreement present an issue of fact which Court of Criminal Appeals, in its capacity of reviewing tribunal only, will not assume to determine.
    2. Criminal law <®=>l 144(4) — Appellate court must presume that Judge properly declined to enforce state attorney’s alleged agreement not to contest suspended sentence on plea of guilty.
    In absence of contrary showing in bill of exceptions, Court of Criminal Appeals must presume that trial judge, when called on to require assistant county attorney to comply with alleged agreement not to contest suspended sentence, if defendant pleaded guilty, investigated matter, and properly declined to require compliance therewith.
    3. Criminal law <§=>l 144(18) — Where evidence on motion for new trial is not brought forward, appellate court must assume that order overruling motion, thereby determining that plea of guilty was not induced by agreement not to, contest suspended sentence, was correct.
    Where evidence, which order overruling motion for new trial recites was heard thereon, is not brought forward, Court of Criminal Appeals must assume that such order, effect of which was to determine in state’s favor fact question presented by attached affidavit of defendant’s attorney that plea of guilty was induced by assistant county attorney’s agreement not to contest suspended sentence, was correct.
    4. Criminal law <§=>274 — Court should withdraw p|ea of guilty, if serious question arises as to whether it was induced by promise not to contest suspended sentence.
    If serious question arises in court’s mind during trial as to whether defendant was induced to enter plea of guilty by promise of state’s attorney not to contest suspended sentence, it is court’s duty to Withdraw such plea and enter plea of not guilty for defendant.
    5. Criminal law <§=>! 144(4) — On appeal from judgment on plea of guilty, appellate court must assume that facts did not warrant withdrawal of plea.
    On appeal from judgment on plea of guilty, Court of Criminal Appeals must assume that facts- before trial court did not warrant withdrawal of such plea and entry of plea of not guilty on ground that defendant was induced to enter plea by assistant county attorney’s promise not to contest suspended sentence.
    6. Criminal law <§==>1036(1) — Defendant not having objected to admission of evidence, appellate court cannot review question.
    Defendant having interposed no objection to admission of evidence, complained of in bills of .exception reciting that he would have objected had he not been relying on assistant county attorney’s agreement not to contest suspended sentence if he pleaded guilty, trial court was not called on to rule, and Court of Criminal Appeals cannot review question.
    7. Criminal law <§=-1028 — Appellate court cannot review question not acted on by trial court.
    . The Court of Criminal Appeals cannot review a question on which the trial court did not act.
    8. Criminal law <§=>1081 (5) — Bill of exception to reading of defendant’s testimony in companion case held fatally defective in not incorporating such evidence.
    Bill of exception to permitting court reporter to read to jury defendant’s testimony as state’s witness on trial of companion case held fatally defective in not incorporating evidence admitted over objection.
    9. Witnesses <§=>350 — Cross-examination of defendant as to prior criminal charges and sentences held proper for impeachment purposes as against objection that record-was best evidence.
    On trial for theft of automobile, cross-examination of defendant as to whether he had not been previously charged with theft and sent to reformatory, and later charged with burglary, for which he received suspended sentence, held not improper for impeachment purposes as against objection that the- record was the best evidence.
    10. Criminal law <§=>l 144(12) — Appellate court must assume that objections to cross-examination of defendant were correctly overruled, where bill of exception does not contain facts of transactions inquired about.
    Where bill of exception to cross.-examination of defendant as to previous charges of theft and burglary on ground that state’s attorney did not properly quote the record, and that trial, having occurred in county court, could not have been for burglary, did not purport to bring forward facts of transactions inquired about. Court of Criminal Appeals must assume that trial court correctly overruled objections.
    11. Criminal law <§=>385 — Verdict in companion-case, wherein defendant testified and jury recommended suspended sentence, held properly excluded.
    In trial for theft of automobile, jury’s verdict in companion case, wherein defendant testified for state and jury recommended suspended sentence, was properly excluded.
    On Motion for Rehearing.
    12. Criminal law <§=>982 — Evidence, bills of exception, and affidavits held to justify conclusion that state’s attorney did not agree to withhold from'jury facts properly affecting right to-suspended sentence.
    Evidence, bills of exception and affidavits in record on appeal from judgment on plea of guilty, alleged to have been induced by assistant county attorney’s agreement not to contest suspended sentence, held to justify trial' court’s conclusion that such attorney did not agree to refrain from presenting to jury all’ available facts properly affecting defendant’s-right to suspended sentence.
    13. Crimina! law <§=>982 — State’s attorney cannot bind state by agreement to withhold from jury proper facts affecting right to suspended sentence.
    State’s attorney, being a sworn officer owing duty to whole people, has no right to undertake to bind state by agreement to withhold proper facts from jury in order that accused, whose past life and conduct would likely prevent suspended sentence, may obtain such sentence.
    14. Criminal law <§=>982 — Witnesses <§=>337(5) —Defendant cannot be cross-examined as to result of juvenile proceeding for purpose of impeachment or prevention of suspended sentence (Code Cr. Proo. 1925, art. 1092).
    Under Code Cr. Proc. 1925, art. 1092, defendant cannot be cross-examined as to result of Juvenile proceeding against him for purpose of impeachment or prevention of suspended sentence.
    15. Criminal law <&wkey;l 137(5)— Defendant cannot complain of cross-examination as to sentence to reformatory in consequence of his'direct testimony as to having been there.
    Defendant cannot complain, on appeal of his cross-examination, as to previous charge of theft and sentence to reformatory, where such question was result of his testimony on direct examination that he had been to reformatory.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Jack Robinson pleaded guilty of theft of an automobile, and, from the judgment entered on such plea, he appeals.
    Affirmed.
    Tom j. Cunningham, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant entered a plea of guilty to theft of an automobile over the value of $50, and his punishment was assessed at five years’ confinement in the penitentiary; suspended sentence 'being denied.

Some confusion in dates caused a question to be raised whether the statement of facts and bills of exception were filed in time. It is made to appear that they were filed in proper time, and will receive consideration.

Appellant’s chief complaint seems to be the claim that he was induced to enter his plea of guilty under an agreement with the assistant county attorney that appellant’s application for suspended sentence would not be contested. The bill of exception brings forward complaint that the trial court declined to ■ require the assistant county attorney to comply with the alleged agreement. The bill is peculiar, in that incorporated therein is an affidavit of appellant’s attorney to the effect that such art agreement was had, and also an affidavit of the assistant county attorney — • made part of the bill by the court’s qualification — to the effect that the plea of guilty was not induced by any such agreement. To say the least of it, the two affidavits present an issue of fact which this court in its capacity of a reviewing tribunal only will not assume to determine. Both of the affidavits were made long after the trial; hence neither could have been before the trial court when he was called upon to require the assistant county attorney to comply with the claimed agreement. In the absence of anything in the bill showing to the contrary, - we must presume that, when the question came up during the trial, the judge investigated the matter and that his ruling thereon was correct.

The record reflects that the learned trial judge must have again considered the question of fact Involved in passing upon the motion for new trial. Attached to this motion is the same affidavit of appellant’s attorney as we find incorporated in the bill of exception. The order overruling the motion recites that the court heard evidence thereon. What such evidence was is not brought forward; hence we must assume that the action of the trial court in overruling the motion was correct, the effect of which order was to determine the question of fact in favor of the state. Delaney v. State, 106 Tex. Cr. R. 345, 292 S. W. 229, and authorities therein cited. If during the trial serious question had arisen in the court’s mind as to whether appellant had been induced to enter his plea of guilty by some promise on the part of the assistant county attorney, it would have been the duty of the court to have withdrawn appellant’s plea of guilty and entered for him a plea of not guilty, which action would have protected appellant’s rights. We must assume the facts before the court did not warrant such action. The eighth bill relates to the same subject considered in -bill No. 1 and requires no further consideration.

Appellant brings forward bills< of exception three and four each of which complain of the admission of certain evidence with the recital that he would have objected to the same had he not been relying on the agreement heretofore discussed. No objection having been interposed when the evidence was offered the court was not called upon to rule and this court is in no position to review a question upon which the trial court did not act.

Complaint is found in bill of exception 5 because the court reporter was permitted, over appellant’s objection, to read to the jury the evidence given by appellant while testifying as a witness for the state on the trial of a companion ease. Objection to such proceeding was urged on several grounds. The bill is incomplete in failing to incorporate therein the evidence which was admitted over objection. The eases are numerous holding such omission to be fatal to the bilb They are collated in Yernon’s Ann. Cr. St. vol. 2, C. C. P., art. 667, under note 31, and in Branch’s Ann. Tex. P. C., under section 210.

Upon cross-examination of appellant, the state asked if he had not been charged with theft and sent to the reformatory in 1922, and if later he was not charged with burglary, being first paroled to his father and mother, and on the second trial received a suspended sentence. Appellant answered that he was tried for both offenses in the county court. The questions are indefinite, but indicate that the inquiry was with reference to offenses involving moral turpitude. For impeachment purposes the inquiry was not improper as against objection that' the record was the best evidence. Authorities are collated under section 167, Branch’s Ann. Tex. P. O. Nothing appearing in the bill supports the objection that the occurrences inquired about were too remote. Further objections were urged that the state’s attorney was not properly “quoting the record,” and that, the trial having occurred in the county court, it could not have been upon a charge of burglary. The bill does not purport to bring forward the facts of the transactions inquired about by the county attorney, and we are left in a position where we must assume that the ruling of the trial court was correct; the bill not being sufficiently full to show otherwise. Burnett v. State, 73 Tex. Cr. R. 477, 165 S. W. 581.

Appellant offered in evidence the verdict of the jury in the companion case in which appellant had testified and in which the jury recommended a suspended sentence. It was properly excluded. A verdict of another jury had no'place in the present trial.

The judgment must be affirmed, and it is so ordered.

On Motion for Rehearing.

In his motion for rehearing, appellant reiterates his complaint that the assistant county attorney had made an agreement not to contest appellant’s application for a suspended sentence, and did in fact contest the same upon the trial. A further careful review of the facts, the bills of exception, and affidavits before us which are a part of the record shows that the trial court was justified in 'concluding that said state’s attorney did not agree to refrain from presenting to the jury all available facts properly affecting the right of appellant to a suspended sentence. It is not claimed that said1 state’s attorney in his argument opposed the granting of it. As shedding light upon the attitude of the matters before the trial court, the affidavit of the assistant county attorney shows that when approached by appellant’s attorney relative to the matter, the assistant county attorney stated that he was opposed to the suspended sentence in this case, but, in view of the facts that a codefendant had received one, the state’s attorney would go no further than to fully develop the facts and leave it to the jury. The argument of the state’s attorney, which is set out in his affidavit without contradiction by appellant, shows that he left it entirely to the jury to say what they would do in that respect. The attorney for the state is a sworn officer under a solemn duty to the whole people, and he has no right to undertake to bind the state by an agreement which would result in wrong to society and the state at large. If in fact the past life and conduct of one accused be such that it would likely prevent the giving of a suspended sentence, it would appear a dereliction on the part of the attorney representing the state to agree to withhold proper facts from the jury in order that such a person might obtain a suspended sentence.

In, the last paragraph of our original opinion we referred to complaint at what took place during the cross-examination of appellant. The disposition <of the question was based solely on what was thought to be the incompleteness of the bill of exception bringing the matter forward for review. • It was not intended to convey the idea that inquiry for the purpose of impeachment or to prevent a suspended sentence might be made regarding the result of a juvenile proceeding in the face of article 1092, C. C. P., which forbids it, and which reads as follows:

“A disposition of any delinquent child under this law or any evidence given in such case, shall not, in any civil, criminal, or other cause or proceeding whatever, in any court, be lawful or proper evidence against any child for any purpose whatever, except in subsequent cases against the same child under this law. Neither the conviction of the accused as a delinquent child nor the service bf sentence thereunder shall deprive him or her of any rights of citizenship when such child shall became of full age.”

We have said this much for fear we did not make ourselves clearly understood by the language used in the original opinion. A .further examination of the statement of facts shows the fact that appellant had been to the reformatory went into the record and reached the jury as a result of testimony given by appellant upon direct examination. The question propounded by state’s counsel in regard to the matter was brought about as a result of the evidence thus given. Regardless of whether the bill upon its face was sufficient, the facts just recited render the complaint unavailing.

The motion for rehearing is-overruled. 
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