
    PATTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1911.
    On Motion for Rehearing, . April 5, 1911.)
    1. Criminal Law (§ 942) — Motions for New Trial — Newly Discovered Evidence — Impeaching.
    . Newly discovered evidence which only tends to impeach the state’s witness is not ground for a new trial in a criminal case.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2331, 2332; Dec. Dig. § 042.]
    2. Criminal Law (§ 939) — Motions for New Trial — Newly Discovered Evidence — Diligence.
    Where a defendant has used no diligence to obtain alleged newly discovered evidence, a new trial should not be granted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    On Motion for Rehearing.
    3. Criminal Law (§ 916) — New Trial — Denial of Counsel.
    Under Code Cr. Proc. 1895, art. 817, requiring a new trial where a defendant has been denied counsel, a defendant’s failure to employ counsel when not prevented by the state or court, is not ground for new trial, as the statute contemplates that the denial should be by the court or state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2159, 2160; Dec. Dig. § 916.]
    4. Criminal Law (§ 273) — Plea of Guilty.
    Where the trial court admonished a defendant, as required by Code Cr. Proc. 1895, arts. 554, 555, before accepting a plea of guilty, the plea was voluntary, though a layman had advised the defendant to plead guilty, so as to receive the lightest sentence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 631-634; Dec. Dig. § 273.].
    5. Criminal Law (§ 1142) — Appeal — Presumptions — Regularity of Jury.
    Code Cr. Proc. 1895, art. 904, giving the Court of Criminal Appeals power to award new trials, provides that it shall be presumed that the jury was properly impaneled and sworn, unless made an issue in the court below and appearing by the bill of exceptions; and hence a judgment of conviction, reciting that “thereupon a jury, to wit - and 11 others were duly selected,” etc., raises no presumption that the jury was composed of more than 12; the blank being left for the name of the twelfth man, who is always foreman.
    [Ed. Note — For other eases, see Criminal Law, Cent. Dig. §§ 3014-3037; Dee. Dig. § 1142.]
    6. Criminal Law (§ 995) — Appeal—Harmless Ebror — JudgmentsSentence.
    A judgment of conviction recited that the defendant is guilty as confessed in his plea of guilty, and, his punishment having been fixed at “five years confinement in the penitentiary,” he is to be punished “by confinement in the penitentiary for five years.” The judgment of sentence, after reciting the provisions of the judgment of conviction, ordered that defendant be delivered to the superintendent of penitentiaries, by whom he “shall be confined in said —-- for five years, in accordance with the provisions of the law governing the - of said state.” Held, that such defects in the judgment of sentence were not ground for reversal.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 2518-2543; Dec. Dig. § 995.]
    7. Criminal Law (§ 995) — Judgment.
    That such judgment of sentence was not numbered or dated was not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518-2543; Dec. Dig. § 995.]
    8. Criminal Law (§ 1028) — Appeal—Presentation oe Grounds of Review in Court Below.
    Grounds for a new trial set up for the first time in motions for rehearing after the appellate court has affirmed the conviction cannot be considered, as the statute requires such matters to be complained of below and shown by a bill of exceptions, in order to give the trial court a chance to correct errors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619-2620; Dec. Dig. § 1028.]
    9. Criminal Law (§ 1169) — Appeal—Harmless Error.
    Where evidence was introduced after a defendant pleaded guilty, to enable the jury to fix the penalty and they fixed the lightest sentence, its admission was harmless.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Shelby County ; Tom C. Davis, Special Judge.
    Wyatt Patton was convicted of sodomy, and appeals.
    Affirmed.
    Homer E. ’Stephenson, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      Por other .cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On September 10, 1908, the appellant was indicted for the offense of sodomy, alleged to have been committed February 10,1908. The appellant was tried about February 27, 1910, pleaded guilty, and the jury assessed his penalty at five years in the penitentiary. The state introduced only one witness, whose testimony was sufficient to show the act of sodomy by the appellant, especially in connection with defendant’s plea of guilty.

The judgment of the court and the hill of exceptions also shows clearly and fully that, before the court would receive the plea of guilty, the judge fully admonished the defendant in all of the particulars required under the statute. The defendant still persisting in his plea of guilty, the court accepted it, and soon after the verdict sentenced him. The appellant was not represented by an attorney.

'Some two weeks after his conviction and sentence he had an attorney to file a motion for new trial for him on several grounds. First, because he had been denied counsel as to his defense. There is nothing in this contention, because the record does not show he was denied counsel.

The second ground is that he was induced to plead guilty, because one Pearce for whom he had worked for about a year told him that if he plead guilty he would receive the lowest penalty, two years, and if he fought the case the jury would fix his term at 15 years. The defendant, having pleaded guilty after the court fully and clearly admonished him as required by law, cannot afterwards successfully claim any such ground for a new trial, and this case does not come within any of the cases where fraud was practiced on the defendant to induce him to plead guilty.

The third ground is newly discovered evidence. No diligence whatever is shown to procure such evidence, and the claimed newly discovered evidence set out is more in the nature of impeaching the state’s witness, and of the state’s witness’ claimed admissions to the party who proposed to testify thereto, than of any pertinent new evidence. In his^motion for new trial which defendant swore to, he states he did not know of this evidence before; but on the hearing of his motion he testified, and not only failed to show any diligence whatever to get this testimony, but failed to show that he did not know the same thing before. The district attorney in the court below objected to the consideration of the motion for new trial by the lower court on various grounds. However, the district judge heard the motion, heard the evidence thereon, and denied the motion.

There is no reversible error pointed out in the record. Hence the case is affirmed.

On Motion for Rehearing.

The appellant has filed a motion and a supplemental motion for rehearing, insisting that the court erred in affirming this case, to wit, in holding “that because the appellant pleaded guilty after the court had fully and clearly admonished him, as required by law, he cannot afterwards claim any such grounds for a new trial.” Also that the record shows that the appellant was denied counsel. Also that the record does not affirmatively show that the jury was composed of 12 men, claiming that it might have been composed of 13 or more. Also because the judgment of sentence is not numbered, that only by circumstances can it be construed to apply to the appellant in this case, and that, as it is not dated, it does not show that it was not passed before the two days elapsed in which the appellant was allowed to file a motion for new trial, and it does not show that the appellant waived the two days, and that the sentence does not show that he is to be confined in the penitentiary of this state according to the laws governing the same.

Article 817 of the Code of Criminal Procedure of 1895 says: “New trials in cases of felony shall be granted for the follow- . ing causes and for no other. First, where the defendant has been tried in his absence or has been denied counsel.” The claim in this case is that the appellant was denied counsel. This statute contemplates that such denial, if it occurs, should be by the court or by the state in some way. This record, instead of showing that he was denied counsel, on the contrary, if it shows anything, clearly shows that he had ample time and opportunity to employ counsel, and if he did not do so it was no fault of the court or the state, either directly or indirectly. Hence he has no ground of complaint on that score. The-judgment and record show that before he pleaded guilty the court admonished him in every particular, and particularly as required under articles 554 and 555 of the Code or Criminal Procedure of 1895, before the court would accept his plea of guilty. Even in introducing the confession of a defendant, this court, in the case of Rice v. State, 22 Tex. App. 654, 3 S. W. 791, says: “The only serious question is, Was the plea a 'voluntary confession? It is contended by defendant’s counsel that it was not, because the defendant was induced to make said plea by the advice of Mansker, the owner of the (stolen) horse, that ‘it would go better with him’ to so plead. Under the earlier decisions upon this subject, the objection to the confession would, perhaps, be well taken, but the almost universally recognized doctrine now is that, to render a confession inadmissible upon the ground that it was induced by the promise of some benefit to the accused, such promise must be positive, and must be made or sanctioned by a person in authority. It must also be of such character as would be likely to influence the accused to speak untruthfully. Whart. Or. Ev. § 651 et seq.; Thompson v. State, 19 Tex. App. 595. The confession in this case is not within the rule stated, and was, we think, a voluntary confession within the meaning of the statute, made after the defendant had been duly cautioned that it might be used against him, and it was not error to permit said confession to be proved." This case has been followed uniformly and many times by this court.

The other grounds of complaint are for the first time set up in the motion for rehearing herein, which was filed on February 8, 1911, and the supplemental motion for rehearing, which was not filed till March 28, 1911. Article 904, O. C. P. 1905, gives this court the power and authority to reverse and remand a cause for a new trial, but expressly provides that “this court shall presume, among other things, that the jury was properly impaneled and sworn, unless it was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below.” The judgment of conviction, among other things, states: “Thereupon, a jury to wit, -- and 11 others was duly selected and sworn,” etc. The contention is that because there is a space left to put in a name for the twelfth man, who is always the foreman, tüat this court ought to presume that there were 13 or more men constituting the jury. Such a presumption, if it could be indulged by this court, would be a violent one, not justified by the record, the law, or the facts.

The contention that the judgment of sentence was not numbered nor dated, nor shows that the appellant was to be confined in the penitentiary, has no merit whatever. The judgment of conviction entered clearly states that the appellant is guilty as confessed by him in his plea of guilty, and, his punishment, “having been fixed by the jury at five years confinement in the penitentiary,” he is to be punished “by confinement in the penitentiary for five years.” The judgment of sentence recites in substance the judgment of conviction and in pronouncing the sentence is as follows: “It is the order of the court that the defendant, Wyatt Patton, who has been adjudged to be guilty of sodomy and whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for five years, be delivered by the sheriff of Shelby county, Texas, immediately, to the superintendent of the penitentiaries of the state of Texas, or other person legally authorized to receive such convicts, and the said Wyatt Patton shall be confined in said -for five years, in accordance with the provisions of the law governing the - of said state, and the said Wyatt Patton is remanded to jail until said sheriff can obey the directions of this sentence. But inasmuch as the defendant has given notice of an appeal to the Court of Criminal Appeals this sentence shall stand suspended until this appeal can be heard and acted upon by said Court of Appeals and its mandate can be received and filed by the clerk of this court.” The very object of the statute in requiring that such matters shall be complained of in the lower court and shown to this court by bill of exception is that the lower court may correct any such minor defects as are complained of herein. None of them are material to the defendant in any such way as to show that this court ought to reverse this case.

So far as the evidence that was introduced was concerned on his plea of guilty, it was only introduced for the purpose of furnishing the jury, data to fix the penalty. If there are circumstances of aggravation, the jury are thereby enabled to fix a higher than the lowest penalty. In this case the lowest penalty was affixed, so that no injury whatever has occurred to appellant on that account.

The motion and supplemental motion for rehearing are overruled.  