1. Murder — Plea of Guilty — Agreement as to Evidence — Practice. — On a trial for murder, where there was an agreement between the parties that defendant should plead guilty to murder of the second degree, and that no other evidence should be introduced but that of one witness (the sheriff), and the trial judge stated to the parties that he would not allow the plea to murder of the second degree, but if defendant pleaded guilty it must be to murder, leaving the question of the degree to be determined by the jury, after which, permitting defendant's plea of guilty to be entered, the court admonished defendant of the consequences of such plea and examined him as to the statutory requisites provided with regard to the plea of guilty (Code Crim. Proc., art. 518), Held, that the action of the court was correct and in conformity with our statutes regulating such proceedings.
2. Same — New Trial — Newly Discovered Evidence. — Where testimony is of such a character as that it must have been known to counsel for defendant before the trial, it is in no sense newly discovered evidence.
3. Same — Evidence — Insanity. — On a trial in a criminal case where defendant pleads guilty, the question of his sanity is an issue required to be shown before conviction can be had, and the evidence upon that issue should be introduced in connection with the entering of the plea of guilty.
4. Same — Motion for New Trial — Insanity — Opinion Evidence. — Affidavits as to the insanity of the defendant filed in support of the motion for a new trial which do not disclose any fact or circumstance tending to show insanity, nor any evidence upon which affiants predicate their belief or opinion as to defendant's insanity, are wholly insufficient.
DAVIDSON, JUDGE.
Appellant was indicted for murder. When the cause was called for trial he entered a plea of guilty. The jury found him guilty of murder in the second degree, and assessed his punishment at twenty-five years in the penitentiary.
There are no bills of exception incorporated in the record. Attached to the motion for a new trial are found the affidavits of defendant's counsel, to the effect that he (defendant) is of weak mind and scarcely responsible for his acts. These were supplemented by the affidavit of Dr. Stallcup, to the effect, that from an examination of defendant, as well as from his personal knowledge, he believed defendant to be of such weak mind as to render him irresponsible for his acts. It was also alleged, that an agreement had been entered into between the counsel in the case that the evidence of the sheriff alone should be used under the plea of guilty, and that this was violated by the court in asking defendant certain questions in relation to his plea of guilty. The affidavit of the judge is also found in the record, in which he certifies that he stated to counsel that he would not allow a plea of guilty to murder in the second degree to be entered in favor of defendant, but in the event he pleaded guilty, that it would be to murder, and the jury would find the degree. With this understanding the plea was entered. The defendant was then admonished by the court as to the consequences, and questioned in regard to the statutory requirements provided for in this character of case. The court further states, that defendant answered "all questions with as much intelligence as any man in Texas could have answered them."
The court's action was in accord with the statute, and there was no other evidence adduced before the jury except that of the sheriff. But if there had been, the court had the authority to have it introduced to satisfy himself and the jury in regard to the facts. Code Crim. Proc., arts. 517-519. "If the defendant plead guilty he shall be admonished by the court of the consequences, and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear or by any persuasion or delusive hope of pardon prompting him to confess his guilt." Id., art. 518; Willson's Crim. Stats., secs. 2111, 2112. The action of the court was in conformity to the above cited statute.
In regard to the facts set up bearing upon the question of sanity, we may observe that the testimony mentioned in the affidavits was known to counsel at the time of the trial, and is in no sense newly discovered. His sanity was required to be shown before his conviction could occur under the plea of guilty, and was necessarily an issue for the court under such plea. If he was insane, the evidence should have been introduced at the time of the plea bearing upon that issue. Again, the affidavits set up no fact or circumstance tending to show insanity, nor do they set out any evidence whatever upon which the affiants predicate their belief or opinion as to defendant's insanity.
As presented to us the record discloses no reason why the judgment should be reversed, and it is therefore affirmed.
Affirmed.
Judges all present and concurring.