
    DELANEY v. STATE.
    (No. 10758.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    Criminal law <&wkey; 1124(4) — Judgment, denying new trial in liquor case and reciting court heard evidence thereon, is conclusive, in absence of report of evidence,
    where judgment overruling motion for new trial by one who pleaded guilty to charge of unlawful manufacture of intoxicating liquor recites that court heard evidence thereon, the finding is conclusive on appeal, in absence of report of the evidence which was before the trial judge.
    Appeal from District Court, Panola County ; R. T. Brown, Judge.
    M. T. Delaney was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Affirmed.
    Woolworth & Baker, of Carthage, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The unlawful manufacture of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

A plea of guilty was entered. The conviction is attacked upon the ground that the plea of guilty was due to persuasion. The details consist of an averment that appellant had evidence that he was under the age of 25 years. However, a part of the proof was not available. This was made known to the district attorney, and an agreement was made by which the appellant withdrew his plea of not guilty and entered a plea of guilty, upon the promise by the district attorney that, in the event the jury failed to accord the appellant a suspended sentence, a new trial would be granted. In support of his contention appellant refers to the case of Stafford v. State, 103 Tex. Or. R. 144, 280 S. W. 218, and the precedents therein cited. Among them is the ease of Harris v. State, 17 Tex. App. 559. Stafford’s case differs from this one in that the evidence upon the hearing of the motion for new trial was conclusive that the district attorney, as an inducement to the accused to plead guilty, agreed to recommend a suspended sentence, and that if the jury failed to accord it a new trial would be granted. In the present case, however, the motion for new trial is supported by an affidavit. The judgment overruling it, however, recites that the court, “having heard the motion and the evidence thereon submitted, is of the opinion that it should be overruled.” The judgment reciting that evidence was heard, the finding of the court against the accused, is conclusive on appeal, in the absence of a report of the evidence which was'before the trial judge, gee Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167; Hickox v. State, 95 Tex. Or. R. 173, 253 S. W. 823; Cade v. State, 96 Tex. Or. R. 523, 258 S. W. 484, and other cases collated in Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 100. See, also, Jones v. State, 103 Tex. Cr. R. 282, 280 S. W. 588.

There are no other questions raised.

The judgment is affirmed.  