
    DAVIS v. STATE.
    (No. 10024.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.
    Rehearing Denied Oct. 20, 1926.)
    1. Criminal law <§=>273.
    Plea of guilty admits all material averments of indictment.
    On Motion for Rehearing.
    2. Embezzlement <@=>44(l).
    Evidence introduced in pursuance of Code Cr. Proe. 1925, art. 502, after plea of guilty of embezzlement, held to sustain conviction and sentence to two years’ imprisonment in penitentiary. *
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Roy Davis was convicted of embezzlement, and he appeals.
    Affirmed.
    Collins, Dupree & Crenshaw, of Hillsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LAiTTIMORE, J.

Conviction in district court of Hill county of embezzlement; punishment two years in the penitentiary.

Appellant pleaded guilty to embezzlement. It was charged in the indictment that he was agent of a certain corporation, and that he fraudulently embezzled, misapplied, etc., $292 in money belonging to said corporation without its consent, which money had come into his possession and was under his care by virtue of his agency.

A plea of guilty admits all material averments of the indictment. Bennett v. State, 98 Tex. Cr. R. 661, 267 S. W. 987. The statute (article 502, C. C. P. 1925), makes obligatory the introduction of testimony upon a plea of guilty; the only purpose of such introduction being to enable the jury to decide on the punishment. We are cited to some cases holding that when the evidence introduced on a plea of guilty demonstrates the innocence of the accused, the trial court should not accept such plea. Bennett v. State, 98 Tex. Cr. R. 660, 267 S. W. 988; Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975.

It is insisted that the facts before the court in this case bring it within the holding above referred to. It was in testimony that appellant installed a Delco light plant for a Mr. Greer, who paid part of the purchase price at the time and owed $292; also that the contract for such plant was made with the corporation above referred to; and that the unpaid part of the purchase price belonged to and was due said corporation. The testimony shows that the balance due on said plant was paid to appellant, who took same, according to a witness, as the agent of said corporation. Said money was not paid over to said corporation by appellant. We think all the requirements as to testimony on a plea of guilty were met, and that there is no testimo ny demonstrating or tending to show that appellant was not guilty of the offense.

Being unable to agree with appellant’s contentions, and the record, showing him to have had a trial in accordance with law, the judgment will be affirmed.

On Motion for Rehearing.

The proof introduced upon appellant’s plea of guilty, for the purpose of enabling the jury to assess the penalty, showed that he installed a Delco light system in Mr. Greer’s house; that Greer paid him $50 upon same at the time; that later Greer paid him an additional $100 upon said plant; that later he paid him $292, being the total amount due in payment for said Delco light plant. This $292 was not reported by appellant to the General Motors Acceptance Corporation at Dallas to whom payment was due for said plant. It was in testimony without dispute that when appellant took said money he took and had same as the agent of said General Motors Acceptance Corporation. This was sworn to by a witness. No such testimony appears in Brady v. State, 21 Tex. App. 659, 1 S. W. 463, cited by appellant, nor in any of the other authorities cited in the motion.

We again call attention to the fact that this case was not one in which the issues were contested, but one in which, bi' his plea of guilty, appellant admitted every material averment in the indictment. We cannot agree with appellant’s contention that the evidence affirmatively shows him to be not guilty herein.

The motion for rehearing is overruled. 
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