Seale v. State

256 S.W.2d 86, 158 Tex. Crim. 440, 1953 Tex. Crim. App. LEXIS 1646

Opinions

WOODLEY, Judge.

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 contention 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; Corley 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 proposition that where the record affirmatively shows that no plea was entered by or for the defendant, the judgment will be reversed.

For the purpose of showing affirmatively that no plea was entered 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 of 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 of the trial judge alone is sufficient to authorize the consideration of any statement of facts showing the testimony of the witnesses, but here, as we understand the record, no witnesses testified, and the statement 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 jeopardy 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.