
    Ex parte SUPER.
    (No. 3519.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Criminal Law &wkey;>273 — Plea— Sufficiency.
    A conviction of violation of the gambling laws entered upon plea of guilty by defendant’s mother, not an attorney at law, unauthorized by him, and made in his absence, was void.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. <&wkey;273.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Habeas corpus on the relation of William Super.
    Relator discharged.
    Kay & Seagler, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator, having been arrested under a commitment issued by the justice of the peace under a judgment convicting him for violation of the gambling laws, resorted to a writ of habeas corpus to obtain his discharge.

The statement of facts, in substance, discloses that Emerson, justice of the peace of precinct No. 4, Anderson county, entered a judgment in favor of the state, on a complaint filed in his court, charging relator with gaming, assessing his punishment at a fine of $10. This occurred in May, 1914. On the 6th day of March, 1915, capias pro-fine was issued to Ellis county. Relator was taken in custody and brought back and placed in jail in Anderson county. The justice of the peace testified that Mollie Super, mother of relator, appeared before him and entered a plea of guilty for relator; and it is upon this plea of guilty that the judgment was founded. The mother of relator testified that he is 23 years of age, being 22 at the time he is charged with gaming; that about the 18th day of May, 1914, she went to see the justice of the peace Emerson about James Super, another son against whom there was pending a charge. She says at that time she did not know they had any charge against relator, and that she never entered any plea of guilty for him, nor for her son James. She further testified relator did not authorize, and has never authorized, her to plead guilty for him; that he was at the time a grown man with a family; and that she is not an attorney at law. Relator himself testified that he was not arrested on a charge of gaming; that he never gave bond, and did not appear in court about that time nor since; and that he did not authorize his mother nor any one else to enter a plea of guilty for him; that he did not know there was a case against him when he left Anderson county and went to Ellis county; that he is of age and married. Under this state of case, relator claims he should be discharged from custody, in that the judgment was void.

This question came before the court in Ex parte Jones, 46 Tex. Cr. R. 433, 80 S. W. 995, and was there decided favorably to relator’s contention. The Constitution and the statute authorize the defendant to appear in person or by counsel, either or both, and in finable misdemeanors a plea of guilty may be entered through his counsel. But this seems to be a limitation placed upon pleas of guilty; otherwise, the law would seem.to require the presence of the defendant in court, and that he enter the plea himself. This matter was discussed in the Jones Case, supra, and it is unnecessary to review it further.

The relator is ordered discharged from custody.  