
    CONNOR v. STATE.
    (No. 7385.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Denied Jan. 17, 1923.)
    1. Criminal law <®=I 159(2)—Verdict on plea of guilty not reversed on ground that evidence is not sufficient to support conviction under plea of not guilty.
    The appellate court must set aside a conviction even under a plea of guilty, where there is no evidence adduced or it demonstrates the innocence of accused, but where a plea of guilty is entered and legal evidence is introduced pertinent to enable the jury to assess the penalty, the verdict will not be set aside on appeal merely because the evidence so introduced would not be sufficient to sustain a conviction under a plea of not guilty.
    2. Larceny <$=>55—Evidence held to support conviction.
    Evidence in a prosecution for theft held to support conviction.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Robert Connor was convicted of theft, and appeals.
    Affirmed.
    Leonard Brown, of San Antonio, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years. The alleged stolen property was two automobile casings.

Prom the state’s evidence, it was shown that the appellant, in company with one Lamkin, sold the casings in question, with others, to the witness Lobert. Appellant testified and explained the matter, in substance, thus: That his employer was a dealer in casings; that in conversation with the witness Lamkin, a fellow employee, Lam-kin said that if the appellant would get into the shipping department, he could make-some money on tires; that tires without tags on them could be sold; that subsequently appellant took a lot of tires to the depot for shipment, and found among them several without tags; that he was kind of afraid to take them back to the store because they were without tags, and Lamkin then took them to his house. He afterwards told the appellant that he was going to sell the tires to Lobert, and that he would give him (appellant) $4 fox delivering the tires to Lobert; that appellant took them in his wagon and they were sold to the witness Lobert.

Appellant’s counsel advances the theory that the evidence negatives the idea of guilt, and relying upon the case of Harris v. State,. 76 Tex. Cr. R. 126, 172 S, W. 975, insists that thé judgment of conviction should be annulled. In so far as the case of Harris v. State announces the proposition that, though one pleads guilty to an assault, the judgment against him should not stand if the evidence negatives the idea of guilt and shows that he-acted in self-defense, its soundness was not questioned in Taylor’s Case, 88 Tex. Cr. R. 470, 227 S. W. 679. However, the proposition affirmed in Taylor’s Case, supra, if the writer comprehends it, was that one having entered a plea of guilty, and. the court, under the formalities required by statute, having accepted the plea, it was not incumbent upon him to charge the jury on the issue of insanity, where there was no evidence that the-accused was insane. In' so far as the ease of Harris v. State, supra, was in conflict with the principle last above stated, the court declined to follow. That it would be the duty of this court to set aside a conviction even under a plea of guilty, where there was no evidence adduced or where the evidence demonstrated the innocence of the accused, finds support in many decisions. See Woodall v. State, 58 Tex. Cr. R. 513, 126 S. W. 591; Martin v. State, 36 Tex. Cr. R. 632, 36 S. W. 587, 38 S. W. 194; Vernon’s Tex. Crim. Stat., vol. 2, p. 289. These oases illustrate an exception to the general rule, which is that where a plea of guilty is entered and legal evidence-is introduced pertinent to enable the jury to assess the penalty, the verdict will not be set aside on appeal because the evidence so introduced. would not be sufficient to support a conviction under a plea of not guilty. Such, was the' announcement made by this court through Judge Davidson in Doans v. State, 36 Tex. Cr. R. 468, 37 S. W. 751. The rule thus stated has been uniformly followed. Weatherford v. State, 73 Tex. Cr. R. 428, 165 S. W. 581; Terreto v. State, 86 Tex. Cr. R. 189, 215 S. W. 329; Flores v. State, 86 Tex. Cr. R. 235, 216 S. W. 170.

The evidence in the instant ease is conceived to be consistent with the plea of guilty. The record does not warrant a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have again examined the record in view of the motion for rehearing, and are confirmed in our opinion that the case before us is not one demanding the setting aside of the judgment of conviction notwithstanding the plea of guilty.

The motion for rehearing is .overruled. 
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