
    DAVIS v. STATE.
    (No. 9910.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.)
    Criminal law <&wkey;995(8).
    Recital in judgment showing that statutory requirements as'to acceptance of plea of guilty were fulfilled could not be overcome, in absence of supporting evidence, by averment in motion for new trial that court accepted plea without warning.
    Appeal from District Court, San Augustine County; V. H. Start, Judge.
    Abe Davis was convicted of theft of cattle, and lie appeals.
    Affirmed.
    J. R. Bogard, of San Augustine, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tlie State.
   MORROW, P. J.

The offense is theft of cattle; punishment fixed at confinement in the penitentiary for a period of two years.

A plea of guilty was entered and evidence heard.

In his motion for a new trial, appellant made an averment that, the court accepted the plea of guilty without warning. We understand from the bill of exceptions, as qualified, that no evidence was offered in support of this averment. The averment is in conflict with the judgment of the court, which contains a recital showing that the statutory requirements with reference to the acceptance of a plea of guilty were fulfilled. This recital couid not be overcome by a mere motion. Supporting evidence would be necessary.

The judgment is affirmed.  