Seale v. StateSeale v. State
- Reporters:
- , ,
- Before:
- Woodley
Lead Opinion
The offense is driving a motor vehicle upon a public highway while intoxicated; the jury having assessed the punishment at a fine of $500.
The appeal is predicated upon the sole contentiоn that appellant was neither required nor permitted to plead to the information and that no plea was entered for him or on his behalf, either by the court or by his attorneys.
Among other authorities, appellant cites and relies upon Fann v. State, 138 Tex. Cr. R. 580, 137 S.W. 2d 1019; Sims v. State, 49 Tex. Cr. R. 199, 91, S.W. 579; Mays v. State, 51 Tex. Cr. R. 32, 101 S.W. 233; Wengenroth v. State, 294 S.W. 554; *442Corley v. State, 150 Tex. Cr. R. 107, 199 S.W. 2d 782; and the late case of Fowler v. State, 155 Tex. Cr. R. 35, 230 S.W. 2d 810.
It appears that the cases cited construe the applicable statutes, Arts. 505 and 642 C.C.P., and Arts. 11 and 847 C.C.P., to support the proрosition that where the record affirmatively shows that no plea was entered by or for the dеfendant, the judgment will be reversed.
For the purpose of showing affirmatively that no plea was еntered in the instant case, appellant refers to what is designated as the “agreed statement of facts on motion for new trial.”
As we understand this instrument, it purports to set out the agreement оf the county attorney and defense counsel that the matters therein would for the purpose of the motion be considered as having been testified to by the respective witnesses therein named, as though the witnesses had in fact appeared and testified thereto. It is signed by appellant’s counsel and by the trial judge, but is not signed by the state’s attorney.
It is true that the approval оf the trial judge alone is sufficient to authorize the consideration of any statement of faсts showing the testimony of the witnesses, but here, as we understand the record, no witnesses testified, and the stаtement merely sets forth stipulations of facts.
Clearly the trial court could not stipulate for the state, and we are not authorized to consider the instrument referred to.
On the other hand, we think that the record does not affirmatively show that no plea was entered, but refutes that claim, the court having instructed the jury, in his charge, “the defendant has entered his plea of not guilty, and by his plea of not guilty, he is presumed to be innocent . . .”
If the question be pertinent, we have no doubt that jeоpardy was complete when the court read his charge to the jury and advised them of appellant’s plea of not guilty, following the reading of the information before the jury sworn to try him, even though jeopardy had not sooner attached by a formal plea.
The judgment is affirmed.
Lead Opinion
*443ON appellant’s motion for rehearing.
DAVIDSON, Judge.Appellant. renеws his insistence that the facts which he claims were stipulated upon hearing of the motion for nеw trial should be considered by us. He presents, in that connection, the affidavit of the county attorney showing that he, through inadvertence, failed to sign the stipulation. The county attorney also сertified that the facts set forth in the stipulation are true.
The facts so stipulated, and upon which reliance is had by the appellant, show that during the trial of the case the appellаnt was not called upon by the trial court to orally enter a plea to the accusаtion, and that appellant’s counsel knew of such fact and purposely and intentionally rеfrained from calling the trial court’s attention to such failure to plead.
Appellant’s counsel did not disclose such fact to the trial court until after the verdict had been reached, and thereafter urged as a ground for a new trial the fact that appellant had not enterеd a plea to the accusation.
The right to enter a plea before the jury may be wаived by the refusal to plead, in which event the trial court enters a plea of not guilty. Art. 500, C. C. P.
This is exaсtly what the trial court did for the appellant when, in his charge to the jury, he told them that “the defendant has entered his plea of not guilty.”
When the trial court delivered to appellant his chargе to the jury for exception and objections — which charge contained the statement thаt appellant had pleaded “not guilty,” it became the duty of the appellant to then сall such error to the trial court’s attention and make known his desire to openly plead bеfore the jury. Not having availed himself of that privilege, the conclusion must inevitably follow that samе was waived.
Appellant insists that, under such construction, the issue before the jury by the plea of nоt guilty was not drawn until the charge was read to the jury; that no evidence was introduced thereaftеr; and, hence, that he, appellant, stands as having been convicted upon a pleа of not guilty without the introduction of testimony.
*444If appellant desired the evidence to be reintroduced after the plea had been entered, -he should have made known such fact to thе trial court but not having done so, he must occupy the position of having also waived that right.
We are constrained to conclude that a correct conclusion was reached originally.
The motion for rehearing is overruled.
Opinion approved by the court.