
    Ernest Brown v. The State.
    No. 1789.
    Decided May 22, 1912.
    local Option—Plea of Guilty—Judgment—Affidavit.
    'Where, upon appeal from a conviction of felony, the judgment recited that the defendant pleaded guilty after due warning, and appellant contended that said plea had not been duly entered, the Appellate Court Will be governed by the judgment and the qualification by the court of appellant’s bill of exceptions and not by the affidavit of the appellant, the judgment being entered according to law, there was no error.
    Appeal from the District Court of Shelby. Tried below before the Hon. W. C. Buford.
    Appeal from a conviction of a violation of the local option law; penalty, one year imprisonment in the penitentiary.
    The opinion states the case.
    
      Anderson & Davis, for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   PRENDERGAST, Judge.

The appellant was convicted for a violation of the prohibition law in Shelby County, after prohibition had been put in force by the proper election orders, etc., since the felony statute was enacted, and given the lowest penalty, one year in the penitentiary.

The judgment is dated September 7, 1911, and after reciting that the State appeared by her district attorney and the defendant in person, in open court, his counsel also being present, both parties announced ready, -"and said defendant Ernest Brown in open court, in person, pleaded guilty to the charge contained in the indictment; thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received, and here now entered of record upon the minutes of the court as the plea herein of said defendant.” The judgment then recites that a jury was duly empaneled and sworn, who, having heard the indictment read, the defendant’s plea of guilty and having heard the evidence submitted and been duly charged hy the court, retired to consider of their verdict and afterwards brought into open court a verdict of guilty as charged in the indictment and fixing his penalty at one year in the penitentiary.

The next day after the trial appellant made a motion for new trial, but that motion is not contained in the record. On September 14, 1911, appellant filed his amended motion for new trial in lieu of said original. This motion was not sworn to by appellant or any other. Also on September 14 he made what is called a motion in arrest of judgment and for a reformation of the judgment which was sworn to by appellant but no other.

By his said motions in arrest of judgment and for new trial and also by bills of exceptions, appellant contends that he, personally, as required by article 581 (570), Code Criminal Procedure, did not plead guilty, but that the plea was entered by his attorneys, he being present, saying nothing and that he was not warned as required by articles 565 (554) and 566 (555), Code Criminal Procedure. These latter articles provide that if the defendant plead guilty he shall be admonished by the court of the consequences and no such plea shall be received unless it plainly appear that he is sane and is uninfluenced by any consideration of fear, by any persuasion, or delusive hope of pardon prompting him to confess his guilt and that when he persists in pleading guilty a jury shall be empaneled to assess his punishment, and evidence submitted to enable them to decide thereupon.

The record does show that at first appellant plead not guilty; that the State thereupon introduced its testimony, which was uncontroverted and showed clearly his guilt. He thereupon, through his attorneys, requested the court to permit him to withdraw his plea of not guilty and to permit him to enter a plea of guilty. That he sought to get the court, and at his instance the court did submit to the jury, whether or not he had been, prior to that time, convicted . of a felony and to get the jury to recommend a suspension of his sentence in this case under the Act of the Thirty-Second Legislature, passed for that purpose. The court did submit this question to the jury and the jury expressly refused, as shown by their verdict, to recommend a suspension of his sentence.

The record further shows that the court heard evidence on the motion for new trial and, after hearing it, overruled it. ' What this evidence was the record does not disclose.

The court in allowing and approving appellant’s bills of exceptions raising these questions qualified them as follows: “That when the case was called for trial the State and defendant both announced ready for trial, a jury was empaneled and sworn, the indictment was read and the defendant entered a plea of not guilty. The State offered its evidence, which shows that the defendant was guilty, as will be seen by reference to the statement of facts in this case. The defendant offered some testimony tending to show that he had never been convicted of a felony and so as will be seen by reference to the statement of facts. The defendant being present, counsel for defendant asked that he be permitted to withdraw from the jury his plea of not guilty and enter a plea of guilty. The court permitted him to do so, and the plea of guilty was entered after conference between defendant and counsel, and the court asked the counsel if defendant’s rights under the plea of guilty had been fully explained to him and both answered that they had been fully explained and he understood them. The case was then submitted to the jury on a plea of guilty. Judgment was entered in accordance with the verdict. No bills of exceptions were taken or any complaint made.”

The statement of facts, as stated by the judge’s qualifications, “shows that the defendant was guilty.” In the face of all this record, this court can not and will not take the affidavit of the appellant himself as true as now contended for by him. Instead, we take, as true, the said record and statement by the judge and hold that all of the requisites prescribed by law where appellant enters a plea of guilty were fully and completely complied with.

The judgment will be affirmed.

Affirmed.  