
    GARCIA v. STATE.
    (No. 6421.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.
    Rehearing Denied Feb. 1, 1922.)
    1. Criminal law <&wkey;l036(8) — 'Where accused pleaded guilty after evidence introduced, if desiring review, plea should have been withdrawn.
    Where, in a prosecution for murder, accused entered a plea of guilty after the evidence was introduced, if accused regarded the evidence as insufficient and desired review on appeal, the plea should have been withdrawn and a plea of not guilty entered.
    2. Criminal law <&wkey;273, 980(1) — Court required to exercise care to prevent improvident entry of plea of guilty; on plea of guilty to felony, evidence must be introduced for jury to determine punishment.
    By Code Cr. Proc. 1911, art. 565, the court is required to exercise great care in preventing the improvident entry of a plea of guilty, and in a case of felony in which the jury has discretion concerning the extent of punishment, where plea of guilty has b^gn entered, evidence must he introduced not to prove guilt but to enable the jury to advisedly assess punishment.
    3. Homicide <&wkey;124 — Killing trespasser taking melons from patch not justified as preventing theft.
    Under Pen. Code 1911, art. 1234, the taking of melons from a patch is classified as “malicious mischief,” and in a prosecution for murder, where deceased was shot by defendant while going into a field accused was guarding for the purpose of taking melons, the killing was not justified, under article 1105, subd. 8, while preventing “theft.”
    4. Criminal law <&wkey;>273 — Homicide <&=s269 — Intent or motive a jury question; plea of guilty admits killing unlawful and jury alone fix punishment.
    In a prosecution for murder, the- intent or motive is a question of fact for the jury and not a matter of law for the court, and where an accused has pleaded guilty, after all the evidence is introduced, by entering the plea, he conclusively admitted that the killing was unlawful and invoked the jury alone on the amount of punishment.
    5. Homicide <&wkey;307(2) — Indictment and information <&wkey;>l89(8) — Indictment for murder embraces all grades of homicide; instructions required as to all grades of crime sho.wn by evidence.
    An indictment for murder embraces all grades of homicide, and accused has the right to instructions on all grades of the offense to which there is adequate evidence.
    6. Criminal law &wkey;>273 — Theory of justification cannot arise on plea of guilty.
    The theory of justification for murder cannot arise under the plea of guilty.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Luis Garcia was convicted of murder, and he appeals.
    Affirmed.
    8. P. Weisiger, of El Paso, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The judgment condemns the appellant to confinement in the penitentiary for a period of 15 years. He entered a plea of not guilty. After the evidence was in, he asked the court to instruct an acquittal. This being refused, he withdrew his plea of not guilty and entered a plea of guilty.

A reversal is sought because of the insufficiency of the evidence and because the court refused to instruct the jury to acquit the appellant, if they believed that he shot the deceased under the belief that he was attempting to steal melons which the appellant was guarding. If appellant regarded the evidence as insufficient and desired the question reviewed on appeal, he should have withdrawn his .jplea of guilty and entered the plea of not guilty. Alexander v. State, 69 Tex. Cr. R. 23, 152 S. W. 436; Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 686.

By our statute, the court is required to exercise great care in preventing the improvident entry of a plea of guilty, and a liberal practice prevails touching its withdrawal. Code of Crim. Proc. art. 565. In a case of felony in which the jury has discretion concerning the extent of punishment, it is incumbent upon the state to introduce testimony. This is done, however, not to prove guilt, but to enable the jury to advisedly assess the punishment.

Under the plea of guilty, there was no issue of justification. Doans v. State, 36 Tex. Cr. R. 468, 37 S. W. 751, and other cases collated in Terreto v. State, 86 Tex. Cr. R. 191, 215 S. W. 329. If the contrary were true, however, we would not be warranted in disturbing a verdict of murder. From his own confession and the undisputed testimony it appears that one Espalin, the owner of a field in which there was a melon patch, employed the .appellant to guard it an.d to kill those who might enter the inclosure. It was not contemplated that he would prevent the entry. On the contrary, he was to dissemble and lull would-be trespassers into a sense of security and shoot them when they entered.

Appellant shot and killed Grady Weeks on a dark night, while the deceased was in the inclosure belonging to Espalin and which the appellant was guarding. Deceased, the witness. Capíes, and twb other young men were riding in an automobile. Capíes and deceased got out of the car to attend a call of nature and entered the in closure. The car-turned around, and as the light flashed upon the deceased a shot was fired by the appellant from a point outside of the inclosure. Before he entere^, Capíes said to deceased, “Let’s get a watermelon,” to which the deceased answered, “No.” There had been no previous discussion of the intent to get melons.

The appellant did not understand the English language. After the homicide he remained at his post with gun in hand, and in his confession says, in substance, that Espalin furnished him with rifle and cartridges and directed him to remain outside of the inclosure, carry his gun in such a manner that it would not be seen, and to shoot any one who entered the inclosure; that in pursuance of these instructions he shot the deceased; that from the actions of the deceased and his companion he was caused to think that they were going; to steal the melons which he was guarding'.

The point is made that, under the statute justifying homicide to prevent theft, appellant’s act was lawful. See article 1105, subd. 8, of the Penal Code. Against this the state interposes the view that the taking of melons is not theft, and therefore would not be within the purview of subdivision 8 of article 1105. This position is urged in view of the classification of the taking of melons from the patch as “malicious mischief” under article 1234 of the Penal Code. It is deemed unnecessary to pass upon the soundness of this position by the state. Adverting to the contention of the -appellant that, under subdivision 8 of article 1105 the homicide was lawful, as a matter of law, we confess our unwillingness to sanction this view. The correct interpretation of the statute, we think, is thus stated:

“If the killing was upon malice, and not to prevent a theft or the consequences of a theft, it would not be justified under the statute, although a theft by night was actually being committed by the deceased at the time he was killed.” Laws v. State, 26 Tex. App. 655, 10 S. W. 220; Surges v. State, 88 Tex. Cr. R. 288, 225 S. W. 1105; Newman v. State, 58 Tex. Cr. R. 443, 126 S. W. 578, 21 Ann. Cas. 718.

If it be conceded that, if the appellant acted upon the reasonable belief that the deceased was about to take the watermelons and fired to prevent the mischief, he would be excused from the homicide, the evidence is still not insufficient to support the verdict of murder. Even under a plea of not guilty, the intent or motive which impelled him to shoot the deceased would be a question of fact for the jury to solve and not a matter of law for the court to decide. Under the plea of guilty, the supposed lawful intent was eliminated. By entering that plea the appellant conclusively admitted that the homicide was unlawful and invoked the decision of the jury alone upon the amount of the punishment'.

The indictment for murder embraced the lower, as well as the higher, grades of homicide, and it was the right of the appellant to have the jury instructed upon the grades of the offenses to which there was adequate evidence. Jackson v. State, 48 Tex. Cr. R. 375, 88 S. W. 239.

The only complaint of the court’s charge is that it did not submit the theory of justification — a theory which, under the plea of guilty, could not arise. It passed out of the case upon the entry of the plea. If the evidence raised it, it might have been reinstated by withdrawal of the plea of guilty and entry of a plea of not guilty.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant questions the correctness of our statement as to the effect of a plea of guilty, and refers us to Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975, as not being in harmony with our views. The opinion in that ease must be read in the light of the issue before the court, which was the question of insanity. In Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 679, in the opinion on motion for rehearing, will be found this language:

“With certain statements in the Harris Case we reluctantly disagree and regret that the same may have led to some confusion, but with the spirit of that decision we are in hearty accord.”

The further reading of that opinion will make manifest the attitude of the court on the question before us when our original opinion in the instant case was written.

On the proposition that accused could justify the killing as being a homicide to prevent theft at night, under article 1105, subd. 8, P. C., the decision in No. 6420, Espalin v. State, 237 S. W. 274 [original opinion November 23, 1921, on rehearing January 25, 1922), is directly adverse to appellant’s contention.

The motion for rehearing is overruled. 
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