
    CLELAND v. STATE.
    (No. 7253.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.
    Rehearing Denied Feb. 21, 1923.)
    ¡Criminal law ($==>884 — Under statute assessment of punishment held exclusively for jury unaffected by agreements between prosecutor and accused.
    Where accused agreed with prosecutor to plead guilty to a felony, with the understanding that prosecutor should recommend that jury assess the minimum punishment, and such recommendation was made, but the jury, after hearing the evidence, assessed a penalty of confinement in the penitentiary for 1½ years although the minimum punishment was 1 year, their verdict was binding, as the assessment of the punishment was exclusively within the discretion of the jury, and was not affected by the agreement, under Code ■ Or. Proe. 1911, art. 666.
    Appeal from District Court, Hunt County; Newman Phillips, Judge.
    Sam Cleland was convicted of unlawfully transporting intoxicating liquors, and he appeals.
    Affirmed.
    Harrell & Starnes, of Greenville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the offense of unlawfully transporting intoxicating liquor; punishment 'fixed at confinement in the penitentiary for a period of 1½ years.

A plea of guilty was entered. From the facts proven it appears that appellant was transporting in an automobile a number of gallons of whisky.

In the judgment of conviction, it is made to appear that the plea of guilty was accepted under the formalities required by the statute, that is, that he was uninfluenced in making the plea by fear, persuasion, or delusive hope of pardon.

On the hearing of the motion for new trial, it is charged that immediately before the jury was impaneled, appellant entered into an agreement with the district attorney to enter a plea of guilty with the understanding that the district attorney would recommend that the jury assess the minimum punishment against him; that the trial court was made aware of this agreement before the plea of guilty was entered; that in argument the district attorney stated to the juiy the substance of the agreement, and that he felt satisfied that the penalty agreed upon would meet the ends of justice. The jury, after hearing the evidence and the statement of the district attorney, assessed the penalty at confinement in the penitentiary for 1 ½ years; the minimum being 1 year.

The statute pertaining to the plea of guilty not only prescribes the circumstances under which it shall he received, but says:

“Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereupon.” Article 566 [555], C. C. P.

There are many expressions of this court emphasizing the mandatory effect of this statute. See Vernon’s Texas Grim. Stat vol. 2, p. 289.

The appellant was represented by counsel. All parties were charged with knowledge of the fact that the assessment of the punishment, within the statutory - limitations, was exclusively within the discretion of the jury. The terms of the agreement as 'set out in the bill of exceptions are consistent with this view. The promise made by the district attorney was to recommend the minimum punishment. This was done. The jurors made no agreement, and could have made none; nor was the discretion vested in them by law in any sense affected by the agreement in question. The verdict rendered by them is binding upon the appellant and upon this court.

We will add, however, that we find nothing in the record suggesting that there existed any facts which would have excused the appellant or mitigated his punishment.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

On consideration of appellant’s motion, we have discovered nothing to justify us in a change of the views expressed in our former opinion.

The motion for rehearing is overruled.  