
    NEWSOM v. STATE.
    (No. 7209.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.
    Rehearing Denied Oct. 3, 1923.
    Application to file Second Motion for Rehearing Denied Oct. 17, 1923.)
    1. Criminal law <§=>959 — Better practice to contradict matters of fact set up and' verified on motion for new trial by written pleading.
    When, in the motion for new trial, a matter of fact is set up and verified by oath of accused the better practice would be for the prosecution, if it desired to contradict it, to file a written pleading upon the subject.
    2. Criminal law <§=959 — Right to object to hearing of evidence on motion for new trial held waived by failure to object.
    Where, under an agreement with the state’s attorney not to oppose accused’s application for suspended sentence, accused pleaded “guilty,” the objection that the court had no right to hold a hearing as to such agreement on motion for new trial, where no counter affidavit was filed, was waived by failure to object to the introduction of evidence, in view of article 613, Vernon’s Ann. Code Cr. Proc. 1916, expressly authorizing the court to hear evidence, and article 22, authorizing accused to waive any right save that of a jury trial.
    3. Criminal law &wkey;>l 144(18) — Judgment denying new trial presumed to be sustained by evidence.
    A judgment denying a new trial, showing expressly that it was based on the hearing of evidence not brought forward on the appeal, is presumed sustained by the evidence.
    4. Criminal law <§=1090(16) — Bill of exceptions held necessary to review court’s action in hearing evidence on motion, for new trial.
    Where, in a prosecution for assault with intent to kill, the state’s attorney agreed orally not to contest accused’s application for suspended sentence if he would plead “guilty,” objection to the court’s action in hearing evidence of such agreement on motion for new trial was not reviewable, in the absence of bill of exceptions. '
    Appeal from District Court, Bosque County ; Irwin T. Ward, Judge.
    Deward Newsom was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    A. C. Chrisman, of Cleburne, and W. E. Myres, of Port Worth, for appellant.
    R. G. Storey, Asst Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

There was a plea of guilty. Evidence was heard which is sufficient to sustain the verdict.

The judgment is attacked upon the ground that, before the appellant entered the plea of guilty, state’s attorney agreed that he would make no contest of appellant’s application for the suspension of his sentence, and that this agreement was not observed, in that the attorney for the prosecution introduced testimony bearing upon the reputation of the appellant. This attack is made by way of motion for a new trial, which is verified by the oath of the appellant. In the order overruling the motion for a new trial, there is an expressed statement that the court heard evidence thereon. However, there is no controverting affidavit. Whether in the absence of such affidavit the court may hear evidence touching the truth of the grounds of .the motion for new trial is a question upon which there is some lack of harmony in our decisions. In Stanley v. State, 16 Tex. App. 392, and Harris v. State, 17 Tex. App. 559, this privilege is apparently denied to the state, but in Keith v. State (Tex. Cr. App.) 56 S. W. 628, the contrary view seems to have been taken. On the subject, it is said in the statute:

“The state may take issue with the defendant upon the truth of the.causes set forth in the motion for a new trial; and, in such ease, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.” Article 841, Code of Crim. Proc.

When, in the motion for new trial, a matter of fact is set up and verified by the oath of the accused, the better practice obviously would be for the prosecution, if it desired to controvert the truth of the averment, to file a written pleading upon the subject. The statute, however, both in article 841 and article 613, C. C. P., expressly authorizes the court to hear evidence, and certainly the filing of a pleading as the basis therefor is a matter that the accused could waive and will be held to have waived, in the absence of objection. See article 22, C. C. P., authorizing the accused to waive any right save that of a trial by jury. Other cases which support this view are collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 325, notably Richardson v. State, 28 Tex. App. 216, 12 S. W. 870; Jackson v. State, 23 Tex. App. 183, 5 S. W. 371.

The judgment overruling the motion for new trial, showing expressly that it was based upon the hearing of-evidence, and the evidence not having been brought forward so that this court may have the benefit of it, the presumption must be indulged that the evidence adduced, on the hearing sustains the court’s action in overruling the motion.

In the instant case, had there been objection to the hearing of the evidence on the motion for new trial, the matter would be presented in a different light. As reflected by the record, it appears that evidence against the good reputation of appellant was heard without objection from him.

The alleged agreement, the effect of which is to attack the judgment of the court accepting the plea of guilty, was one which it is not clear that the trial court was bound, to respect; certainly not when the agreement is not reduced to writing. See Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Thompson on Trials, vol. 1, §§ 198 to 201; Cleland v. State, 93 Tex. Cr. R. 503, 247 S. W. 861. The appellant, relying upon an agreement, yerbal or written, controlling the introduction of evidence, should have interposed an objection at the time the evidence was offered and permitted the trial court to determine whether, under the agreement, the proffered evidence should be received, and whether the agreement would be enforced by the court. This should be done to the end that, if the ruling is adverse, the whole matter might be embraced in a bill of esceptions, and the correctness of the ruling decided on appeal. In the absence of such bill of exceptions, the matter under discussion in the instant case is not before this court in a manner authorizing its review.

For the reason stated, the judgment is affirmed.

On Appellant’s Application to File Second Motion for Rehearing.

HAWKINS, J.

The judgment was affirmed, and appellant’s motion for rehearing overruled without a written opinion. He now requests permission to file a second motion for rehearing. We perceive no reasons which lead us to believe our former disposition of the case to be erroneous.

The request is denied. 
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