
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22, 1912.)
    Criminal Law (§ 1111) — Record — Statement of Facts — Modification by Jud&e.
    The Court of Criminal Appeals will take the record and the statement of facts shown by the trial judge’s qualification thereof as true against a conflicting affidavit by accused on his motion for a new trial and in arrest.
    [Ed. Note. — For other cases, see- Criminal Law, Cent. Dig. §§ 2894-2895; Dec. Dig. g 1111.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Ernest Brown was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    Anderson & Davis, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was convicted for a violation of the prohibition law in Shelby county, after prohibition had been put in force by the proper election orders, etc., since the felony statute was enacted, and given the lowest penalty, one year in the penitentiary.

The judgment is dated September 7, 1911, and after reciting that the state appeared by her district attorney and the defendant in person in open court, his counsel also being present, both parties announced ready, “and said defendant Ernest Brown in open court, in person, pleaded guilty to the charge contained in the indictment. Thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received, and here now entered of record upon the minutes of the court as the plea herein of said defendant.” The judgment then recites that a jury was duly im paneled and sworn, who, having heard the indictment read, the defendant’s plea of guilty, and having heard the evidence submitted and been duly charged by the court, retired to-consider of their verdict, and afterwards brought into open court a verdict of gui’ty as charged in the indictment, and fixing his-penalty at one year in the penitentiary. The next day after the trial appellant made a motion for new trial, but that motion is not contained in the record. On September 34, 1911, appellant filed his amended motion for new trial in lieu of said original. This motion was not sworn to by appellant, or any other. Also on September 14th he made what is called a motion in arrest of judgment and for a reformation of the judgment, which was sworn to by appellant, but no other.

By his said motions in arrest of judgment and for new trial, and also by bills of exceptions, appellant contends that he, personally, as required by article 581 (570) O. G. P. 1911, did not plead guilty, but that the plea vas entered by his attorneys, he be'ng pr sent, saying nothing, and that he was not warned as required by articles 565 (554) and 566 (555), G. G. P. These latter articles provide (hat, if the defendant plead guilty, he shall be admonished by the court of the conseiuences, and no such plea shall be receive! unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear, by any persuasion, or delusive hope of pardon, prompting him to confess his guilt, and that When he persists in pleading guilty a jury shall be impaneled to assess his punishment, and evidence submitted to enable them to decide thereupon. The record does show that at first appellant pleaded not guilty; that the state thereupon introduced its testimony, which was uncontroverted and showed clearly his guilt; that he thereupon, through his attorneys, requested the court to permit him to withdraw - his plea of not guilty, and to permit him to enter a plea of gui’ty; that he sought to get the court, and at his instance the court did submit to the jury, whether or not he hacl been, prior to that time, convicted of a felony, and to get the jury to recommend a suspension of his sentence in this case under the act of the Thirty-Second Legislature (chapter 44) passed for that purpose. The court did submit this question to the jury, and the jury expressly refused, as shown by their verdict, to recommend a suspension of his sentence. The record further shows that the court heard evidence on the motion for new trial, and, after hearing it, overruled it. What this evidence was the record does not disclose.

The court, in allowing and approving appellant’s bills of exceptions r.tis ng these questions, qualified them as follows: “That when the case was called for trial the state and defendant both announced ready for trial, a jury was impaneled and sworn, the indictment was read, and the defendant entered a plea of not guilty. The state offered its evidence, which shows that the defendant was guilty, as will be seen by reference to the statement of facts in this case. The defendant offered some testimony tending to show that he had never b:en convicted of a felony, as will be seen by reference to the statement of facts. The defendant being present, counsel for defendant asked that he he permitted to withdraw from the jury his plea of not guilty and enter a plea of guilty. The court permitted him to do so, and the plea of guilty was entered after conference between defendant and counsel, and the court asked the counsel if defendant’s rights under the plea of guilty had been fully explained to him, and both answered that they had been fully explained and he understood them. The case was then submitted to the jury on a plea of guilty. Judgment was entered in accordance with the verdict. No bills of exceptions were taken or any complaint made.”

The statement of facts, as stated by the judge’s qualifications, “shows that the defendant was guilty.” In the face of all this record, this court cannot and will not take the affidavit of the appellant himself as true, as now contended for by him. Instead, we take as true the said record and statement by the judge, and hold that all of the requisites prescribed by law, where appellant enters a plea of guilty, were fully and completely complied with.

The judgment will be affirmed.  