
    ZEPEDA v. STATE.
    (No. 11531.)
    Court of Criminal Appeals of Texas.
    April 18, 1928.
    On Motion to Reinstate Appeal, May 16, 1928.
    On Motion for Rehearing, June 28, 1928.
    1. Bail @=>70 — Reviewing court acquired no jurisdiction where appeal bond was filed during trial term (Code Cr. Proc. 1925, art. 818).
    Where defendant executed and filed appeal bond before trial term of court expired, reviewing court acquired no jurisdiction of appeal under Code Cr. Proc. 1925, art. 818.
    2. Bail @=>70 — Appeal bond approved by sheriff alone without approval of trial judge is ineffective (Code Cr. Proc. 1925, art. 818).
    Appeal bond approved by sheriff only is without effect, since trial judge must also approve it under Code Cr. Proc. 1925, art. 818.
    3. Criminal law @=>1092(7)— Bill of exceptions not filed within 30 days came too late, where time was not extended.
    Bill of exceptions not filed within 80 days was filed too late, where there was no order granting additional time.
    On Motion to Reinstate Appeal.
    4. Criminal law @=>1131 (7) — AppellanPs presentation of certified copy of appeal bond on motion to reinstate appeal gave reviewing court jurisdiction (Code Cr. Proc- 1925, art. 835).
    Appellant’s presentation of certified copy of appeal bond on motion to reinstate appeal gave Court of Criminal Appeals jurisdiction, under Code Cr. Proc. 1925, art. 835, permitting amendment of appeal bonds.
    5. Criminal law @=>982 — Argument of counsel, on defendant’s motion for suspended sentence, that defendant, who introduced testimony on question of his age, had burden to prove age, was not improper.
    Where defendant, pleading guilty to possessing intoxicating liquor, introduced testimony .on issue of his age relative to question of suspended sentence, argument of state’s counsel to jury that burden of proof was on defendant on the issue of his age was not improper.
    On Motion for Rehearing.
    6. Criminal law @=>273 — Failure of trial court to give defendant hearing on issue of insanity before accepting plea of guilty held not error, where judgment set forth finding that defendant was sane (Code Cr. Proc. 1925, art. 501).
    Failure of trial court to give the defendant a hearing on the issue of his insanity before accepting plea of guilty held not error, where judgment on plea set out trial court’s finding that defendant was sane; hearing of testimony being unnecessary, though Code Cr.'Proc. 1925, art. 501, requires that sanity of accused appear before plea of guilty is received.
    '7. Criminal law @=>1133 — Defendant could not complain on rehearing that, after conviction and affirmance, district judge had refused hearing on issue of his present insanity.
    Defendant was not entitled to complain, on motion for rehearing, that .district judge had refused to grant him a hearing on issue of present insanity subsequent to his conviction and affirmance of case upon appeal.
    Appeal from District Court, Frio County; W. O. Murray, Jr., Judge.
    M. Zepeda pleaded guilty to possessing intoxicating liquor for the purpose of sale, his punishment was assessed, arid a suspended sentence was denied, and he appeals.
    Affirmed.
    Grover C. Morris, of San Antonio, and Frank W. Steinle, of Pearsall, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant entered a plea of guilty to possessing intoxicating liquor for the purpose of sale. His punishment was assessed at one year in the penitentiary and suspended sentence denied.

The trial terra of court adjourned the 17th day of September, appellant’s motion for new trial having been overruled and notice of appeal given on the 16th day of September. Appellant did not. enter into recognizance during, the term of court in order to secure his enlargement pending appeal, but on the same day his motion was overruled and while court was still in session he executed an appeal bond to effect his enlargement. This court acquires no jurisdiction of an appeal where an, appeal-bond is filed during the trial term of court. Article 818, C. C. P.; Lang v. State, 80 Tex. Cr. R. 272, 190 S. W. 146; Hale v. State, 87 Tex. Cr. R. 119, 219 S. W. 1097. Other authorities will be found collated under note 3, art. 818, Vernon’s C. C. P. vol. 3.

The matter mentioned will necessitate the dismissal of the appeal. We take note, however, that the appeal bond is approved by the sheriff only. If otherwise regular it would be noneffective for lacking the approval of the trial judge. Article 818, C. C. P., requires approval of both the judge and the sheriff.

We observe that only one bill of exception appears in the record. It was not filed until the 4th day of December. In the absence of an order granting additional time appellant had only 30 days in which to file bills of exception. No additional time was allowed ; hence the bill was filed too late.

The appeal is dismissed.

On Motion to Reinstate Appeal.

MORROW, P. J.

In a motion to reinstate his appeal, the appellant presents a certified copy of tifie appeal bond, which-under article 835, C. C. P. 1925, permitting an amendment of the bond, confers upon this court the jurisdiction of the appeal. There was a plea of guilty, and' proof of the offense was uncontroverted.

But one bill of exceptions is found, and that deals with the argument of counsel for the state with reference to the issue of a suspended sentence. Appellant introduced testimony on the issue of his age. Several witnesses testified that they had no accurate knowledge as tó his age, but estimated it as being from 23 to 25 years. His mother testified that he was 24 years old. The appellant said: “I guess I am over 25 years old.” Counsel for the state, in his argument, told the jury in'substance that, upon the issue of age, the burden of proof was upon the appellant. An exception was reserved to these remarks, and the court was requested in a verbal motion to disregard them. The court, in overruling the objection, committed no error.

-In the brief there is a discussion of the subject of insanity. It was recited in the judgment that the court was satisfied that the appellant was sane, and we fail' to find any evidence to the contrary. The pertinency of the discussion of the subject, and citation of authorities, such as Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782, and Harris v. State, 76 Tex. Cr. R: 126, 172 S. W. 975, is hot perceived. We will add that the cases last mentioned have been discussed at some length in the case of Taylor v. State, 88 Tex. Cr. R. 479 (see. page 478), 227 S. W. 679.

The order of dismissal is set aside, and the judgment- of the trial court is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The ground of this application is that the trial judge did not give appellant a hearing on the issue of his insanity before accepting his plea of guilty. We would not hold it necessary for the trial judge to hear testimony in such case. While article 501 of our C. C. P. provides that no plea of guilty in a felony case shall be received, unless.it plainly appear that the accused is sane, still, as said by us in Taylor v. State, 88 Tex. Cr. R. 481, 227 S. W. 684:

“The question of sanity, when such plea of guilty is offered, is for the court and relates solely to the mental condition of the accused when making his plea and not to such condition when the offense was committed. The act of pleading guilty to the commission of a crime, a felony, which involves disgrace and heavy penalties, is so against his interest that it pleased the merciful framers of our laws to assume that a man would not do so in his right mind, and when free from hostile influences. So that the inquiry in such ease is confined to the time of the plea and is only for the court. Hence it has always been held necessary that the judgment in such case should affirmatively show that the trial court had passed on this question and found the accused sane, as a prerequisite to accepting such plea. Sanders v. State, 18 Texas App. 372; Saunders v. State, 10 Texas App. 336; Wallace v. State, 10 Tex. Rep. 407; Frosh v. State, 11 Tex. App. 280; Harris v. State, 17 Tex. App. 559; Burton v. State, 33 Texas Cr. R. 138 [25 S. W. 782]; Coleman v. State, 35 Tex. Cr. R. 404 [33 S. W. 1083]. Judge White, in the Burton Case, supra, says that sanity ‘was necessarily an issue for the court in such plea.’ In the Coleman Case, supra, Judge Davidson says, referring to the question of insanity in connection with a plea of guilty: ‘In our opinion, however, this is a matter which must be presented to the court, and the court must make its finding thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea, and the acceptance thereof by the court, are indispensable, and must be made manifest of record.’ ”

The judgment upon the plea of guilty in the instant cáse affirmatively sets out the finding of the trial court that appellant was then sane. We might observe that the case of Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975, cited by appellant, was reviewed and in part disapproved in the Taylor Case, supra. This court will not undertake to lay down rules by which trial courts must be governed in their procedure to satisfy themselves- of the sanity of one offering to plead guilty in a felony case.

Appellant complains of the refusal of the district judge of Frio county to grant him a hearing upon the issue of his present insan‘ity, subsequent to his conviction and the af-firmance of his ease upon appeal. Such complaint has no place in this motion for rehearing, and will not be considered.

The motion for rehearing will be overruled. 
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