
    DIAZ v. STATE.
    (No. 4225.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Antonio Diaz was convicted, and appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was under a plea of guilty for violating the local option law, the jury awarding the maximum penalty of three years’ confinement in the penitentiary.

No evidence was introduced during the trial of the case except with reference to the suspended sentence plea. The failure of the state to introduce evidence in regard to the merits of the case is shown by a bill of exceptions. The trial judge signs this bill with the statement that the defendant waived the introduction of testimony. This does not meet the requirements of the statute. This statute is held to be mandatory and evidence must be introduced unless the penalty is fixed in a definite and in certain amount or number of years. Wherever the punishment is graduated from a minimum to a maximum term, evidence must be introduced. This statute was enacted as well for the benefit of the state as for the defendant. This question has been discussed so often we deem it unnecessary to go into it further. The authorities will be found collated in Mr. Branch’s Crim. Law, § 677; Branch’s Ann. Penal Code, p. 325, and Vernon’s Ann. Statutes, vol. 2, p. 289.

The judgment is affirmed.

I wrote this opinion, but my Brethren do not agree and write their reasons in Flores’ Case, 190 S. W. 496 (No. 4226), this day decided. I cannot agree with them, but do not care to write at length in either case. I dissent in Flores’ Case, and write this on authority of Flores’ Case.  