
    DODSON v. STATE.
    (No. 3479.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.
    On Motion for Rehearing, April 7, 1915.)
    1. Criminal Law <@=>1088 — Appeal—Record-—Statement ot Eaots.
    A statement of facts cannot be considered-on appeal from the denial of motion for new trial, when not filed during term time.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2676, 2746-2751, 2757, 2766, 2782-2802, 2899; Dec. Dig. <@=>1088J.
    2. Criminal Law <§=1004 — Review — Decision or- Lower Court — Contention Not-Made Below.
    In a prosecution for violating the local option law, where the statement of facts on motion for new trial showed that the contest was directed to the question of defendant’s guilt in making a sale, and not to the question whether the local option law was in effect in the county at the time of the alleged sale, such latter contention could not be relied on on appeal from-denial of the motion.
    [Ed. Note. — For other eases, see Criminal-Law, Cent. Dig. §§ 2676-2684; Dec. Dig. <©=>• 1064.]
    Appeal from Nolan County Court; Jno. I-I. ■Cochran, Jr., Judge.
    Earnest Dodson was convicted of a misdemeanor, and he appeals.
    Affirmed.
    
      W. E. Ponder, of Mt. Pleasant, for appellant. O. C. McDonald, Asst Atty. Gen., for tlie State.
   DAVIDSON, J.

Appellant was convicted ■of violating the local option law, his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail. He pleaded guilty. On motion for new trial he moved the court to set aside the plea as entered and hear the case on plea of not guilty. This was refused. As presented this was not error. The court tried the cause on waiver of jury by appellant. There was some testimony introduced, which is found in the record. It raises the question of agency. The court decided this against appellant. In view of the record, we believe the court was justified in finding against this contention.

The judgment is affirmed.

On Motion for Rehearing.

At a previous day of the term the judgment herein was affirmed. The opinion shows that appellant plead guilty, and on motion for new trial moved the court to set aside his plea and the judgment entered on it and- permit him to enter a plea of not guilty and try tlie ease from that viewpoint. The court refused.

Appellant contends that, inasmuch as it wras not shown that local option was in effect in Nolan county, therefore the judgment should have been reversed. Under a plea of guilty in a misdemeanor case, it is not necessary to introduce evidence; at least such is the statute. On a plea of guilty in a misdemeanor the court may take the plea and hear evidence or not. O. O. P. 1911, art. 5S2. In this case there seems to have been no evidence introduced on the trial; at least there is no statement of facts showing that any testimony was introduced on the trial. On motion for new trial there is a statement of facts signed and approved by the judge, ■which was introduced in regard to the motion, wherein it was requested that the judgment be set aside on plea of guilty, and he be permitted to try his case on a plea of not guilty. There is no reason shown of any particular merit why the motion for new trial should have been granted, and if we could consider the statement of facts introduced on motion for new trial, it would show that he admitted his guilt and stated to the court, among other things, that when he pleaded guilty he was advised and admonished as to the consequences of such plea, and yet pleaded guilty and asked the mercy of the court. 1-Ie also testified that he made a statement to the county attorney, after being -warned, admitting his guilt. I-Ie further stated that he knew what he was doing when he pleaded guilty to the court, and told the court'that when he pleaded guilty he “ought to be fined $500 and given 50 days in jail, in addition to being a fool.” This is some of the evidence introduced on motion for new trial, asking the court to set aside the judgment on his plea of guilty. However, this statement of facts and these matters arising on the motion cannot be considered. Court adjourned on the 5th day of December; the statement of facts on motion for new trial was filed on 3d day of February following. There are some bills of exception reserved to the action of the court occurring on motion for new trial, which were filed on 16th day of December. The statement of facts, on motion for new trial and with reference to matters growing out of motion for new trial-, must be filed during term time. The statement of facts cannot therefore -be considered in regard to this matter. But even if considered, we are of the opinion that the court was not in error in refusing to grant the new trial and set aside the plea of guilty and the previous conviction on the grounds stated. The fact that the statement of facts on motion for new trial does not show that local option was in effect, in that county was not made a point in the motion for new trial, and was not called to the attention of the court. If this had been made a ground of the motion for new trial, although he had pleaded' guilty, the motion would be granted if it was shown that local option was not in effect in the county. If local option was not in effect, of course there was no predicate for this prosecution and conviction, but there was no contention that local option was not in effect, and the contest, as shown by the statement of facts, was all directed to the ■question of his guilt of making a sale, he claiming in motion for new trial that he was acting as agent for another party in securing the whisky. If that had been an uncontro-verted fact, then the court should have granted a new trial from that viewpoint, but if we go to the statement of facts introduced before the court on motion for new trial, this is not strongly supported. There is some slight evidence suggesting that issue. But all these matters of fact pass out because the statement of facts was not filed within the time allowed by law and cannot be considered.

As the record presents the question, there was no error shown, and the motion for rehearing will be overruled. 
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     