
    MARTIN v. STATE.
    (No. 10888.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    Rehearing Denied March 7, 1928.
    1. Criminal law &wkey;l 137(7) — Conviction cannot be attacked for insufficiency of evidence where defendant has pleaded guilty.
    Verdict of guilty cannot be attacked for insufficiency of evidence where defendant has pleaded .guilty, since such plea admits all incriminating facts.
    2. Criminal law &wkey;980(2) — After plea of guilty, evidence is admitted only to determine penalty.
    Where.defendant in criminal case has pleaded guilty, evidence is admitted only to determine penalty.
    3. Criminal law <&wkey;1134(3) — Conviction after plea of guilty cannot be reversed for Insufficiency of evidence where defendant received lowest penalty.
    Where defendant, after pleading guilty, received lowest penalty for crime charged, case cannot be reversed for lack of sufficient _ evidence, since on such plea evidence is admitted only to determine penalty.
    4. Criminal law ©==>534(1) — Rule as to corroboration of confession applies only to extrajudicial confession.
    • Rule relative to corroboration of defendant’s confession in criminal case applies only to extrajudicial confession.
    5. Criminal law <&wkey;l038(1) — Charge that defendant was charged with unlawful possession. of intoxicating liquor foi* sale held not fundamental error where indictment charged unlawful possession foi- sale of spirituous, vinous, and malt liquors capable of producing intoxication (Code Cr. Proc. 1925, art. 666).
    Under indictment charging possession for sale of spirituous, vinous, and malt liquors capable of producing intoxication, charge stating defendant was charged with unlawful possession of intoxicating liquor for purpose of sale held not fundamental error, as claimed by defendant who made no objection during trial, as required by Code Or. Proc. 1925, art. 666.
    On Motion for Rehearing.
    6. Criminal law &wkey;>I036(l), 1038(1) — Objections to admission of testimony or to charge,
    . made for first time on motion for new trial, will not be considered on appeal.
    Any complaint of defendant in criminal case, whether relating to admission of testimony or charge, which was made for first time in motion for new tri&, will not be considered, since trial judge is entitled to presentation of any objection at trial.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County ; Hawkins Scarborough, Judge.
    Zebdee Martin was convicted of the unlawful possession of intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Davis, Jester & Tarver, of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

Appellant was convicted of the unlawful possession of intoxicating liquor for the purpose of sale and his punishment assessed at confinement in the penitentiary for a term of one year.

It appears that the appellant pleaded guilty in the trial court. That evidence of a search revealing a quantity of intoxicating liquor was introduced against him as well also as his extrajudicial confession. The appellant himself took the witness stand in the trial of his case and admitted that he was in possession of the intoxicating liquor and that he had sold about a half gallon of it. ■ His own testimony in the court below clearly shows his guilt.

Appellant questions the sufficiency of the evidence. It is well settled that a verdict of guilty cannQt be attacked for the insufficiency of the evidence where the defendant has pleaded guilty, such plea admitting all incriminating facts. Gipson v. State, 86 Tex. Cr. R. 364, 216 S. W. 870; Doans v. State, 36 Tex. Cr. R. 468, 37 S. W. 751. Evidence is admitted only to determine the penalty. Gipson v. State, supra. The appellant having received the lowest penalty under a plea of guilty, this case could not be reversed for lack of sufficient evidence. Terreto v. State, 86 Tex. Cr. R. 188, 215 S. W. 329; Coats v. State, 86 Tex. Cr. R. 234, 215 S. W. 856.

The contention is made that there is no corroboration of appellant’s confession. This rule applies only to an extrajudicial confession, and the rule invoked would not apply to the facts of the instant case.

No objections were made during the trial either to the court’s charge or to the reception of evidence. On motion for a new trial, such objections were raised for the first time. Article 666, O. O. P., provides:

“All objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial.”

This 'same article also provides, in substance, that a judgment shall not be reversed unless the errors in the court’s charge were calculated to injure the rights of the defendant. The indictment charges that:

Appellant “did then and there unlawfully possess for the purpose of sale spirituous, vinous, and malt liquors capable of producing intoxication."

The court in his main charge states that:

The appellant “stands charged by indictment in this case for the offense of unlawful possession of intoxicating liquor for the purpose of sale.”

The main attack against the charge is based upon the use of the above language by the court, appellant claiming that there is no such offense as that stated, and that it is another and different offense from that charged in the indictment. As before stated, no objection was made to this charge at the time .of the trial. The charging part of the indictment quoted above and the language of the court are somewhat different, but we are not able to perceive how any injury could have resulted to appellant. This was undoubtedly not fundamental error as will appear from the case of Hays v. State, 95 Tex. Cr. R. 550, 255 S. W. 426. It was there held that the charge of the court in a ease of the theft of an automobile which authorized a conviction upon the unlawful taking instead of the fraudulent taking was not fundamentally erroneous, and that in the absence of a timely objection the use of the words “unlawfully taken”'instead of “fraudulently taken” constituted no error. A fraudulent taking is an essential element of theft under its definition, notwithstanding which the court held that its omission in the absence of an objection in the trial court constituted no reversible error. We discuss this only because appellant insists same constitutes fundamental error.

Further complaints of the court’s charge on the admission of evidence were made in the motion for new trial, but, for the reason that no objection was made at the time of the trial, these cannot be considered. See notes under article 666, Vernon’s O. O. P. pp. 337, 338.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

In his motion and oral argument in support' thereof appellant urges practically every point raised on this appeal. He pleaded guilty. It must be borne in mind that, under all the authorities, this admits his guilt of the offense, and the purpose of the introduction of evidence is to enable the jury to fix the amount of penalty. This is so by statute. Nor can we lose sight of the fact that during the trial no objection was made to the introduction of any testimony, nor was fault found, by exception, with the charge of the court. The motion for new trial brings into the record no extraneous matters, and but avers errors which, if tangible, occurred during the trial and at a time when, if proper objection had been made, such errors might have been retracted, or a different ruling made by the trial judge. Each of the four bills of exception refers to and is based upon some allegation of error appearing in the motion for new trial and pointing back to some mistakes supposed to have been made during the trial. We cannot sanction this practice. The trial judge is entitled to have the benefit of the presentation to him of any objection made by the accused, whether same relates to the admission or rejection of testimony, or to the issues of law submitted in the charge. Objection cannot be made to these things for the first time in a motion for new trial. We think the fact that the verdict of the jury failed to give appellant the benefit of a recommendation for a suspended sentence disposes of appellant’s contention in that matter.

Being unable to agree with any of the contentions of appellant, the motion for rehearing will be overruled. 
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