Johnson v. State , 39 Tex. Crim. 625 ( 1898 )

HENDERSON, Judge.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There are two bills of exception in the record, which present the only questions that require to be considered. It appears that appellant had, previous to this trial, been tried in the County Court for theft of certain property, which was committed at the time of the alleged burglary, and was a part of the same transaction alleged against him in this ease. On said trial he entered a plea of guilty, and was convicted. On the trial of this case, objection was made to the introduction of the evidence of conviction in said former ease, on the ground that appellant at the time was in custody; that he was taken from the jail by an officer into the court room, and there pleaded guilty to said charge of theft; that said plea was made without his being warned of the consequences thereof, and was not voluntarily made, because he was told by a person then in the court room that, if he would plead guilty, it would go easier with him. We are thus presented with the question whether, in a misdemeanor case, a plea of guilty entered by a defendant without having been warned can be used in evidence against him on the trial of another ease in which said testimony is relevant. Our statute with reference to felonies provides that, where a defendant pleads guilty, it must be in open court, and by the defendant in person, and he must be admonished by the court of the consequences of said plea, and no such plea shall be received unless it plainly appears 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 in such case there must be a jury impaneled to assess his. punishment, and evidence submitted to enable them to decide thereon. See Code Crim. Proc., arts. 554, 555, 570. If these prerequisites are complied with, it would appear to take the case out of the statute regulating confessions as testimony. See Code Crim. Proc., art. 790. But these provisions do not apply to misdemeanors. Code of Criminal Procedure, article 571, provides: “A plea of guilty in a case of misdemeanor may be made either by the defendant or his counsel in open court; and in such ease the defendant or his counsel may waive a jury and the punishment may be assessed by the court, either upon evidence or without it, at the discretion of the court.” The right, however, of a defendant in a misdemeanor case to enter a plea of guilty by counsel, is limited by article 633 of the Code of Criminal Procedure to those cases where the punishment is alone by fine. We know of no statute that requires any sort of warning to be given to a defendant in a misdemeanor case when he enters a plea of guilty. Yet on that plea as evidence the court or jury trying the case is authorized to render a verdict and judgment against the defendant. If this were an infringement on article 790 of the statute, the plea of guilty could hardly be received and treated as evidence, in the absence of a warning given. So it would seem that it was the object of the Legislature to take a plea rendered under such circumstances out of the operation of the statute relating to confessions. It is a confession of guilt, it is true, but it is made in open court, under its authority and protecting aegis; and it is assumed in such case that the statement (that is, the plea of guilty) is freely and voluntarily made. This view does not antagonize the case of Rice v. State, 22 Texas Criminal Appeals, 654. That was a case where the statement desired to be used was made pending an examining trial, and the statement so made 'is within the letter of the statute on confessions. Row, if a plea of guilty in a misdemeanor ease can be received as evidence by the court trying it, and on such testimony a solemn judgment of conviction rendered, on what theory can it be claimed that said judgment, when otherwise relevant, can not be introduced in evidence ? To say that a judgment authorized by law could not be used as evidence in some other case where it was pertinent and relevant, it occurs to us, would be to stultify the action of the court itself. Such a judgment is a final judgment between the parties, and could only be attacked collaterally on the ground that it was absolutely void'. It could not be attacked for mere irregularities. See 1 Bish. New Crim. Proc., sec. 1254a; 6 Am. and Eng. Enc. of Law, 2 ed., p. 559, and authorities there cited. The testimony regarding the theft was a part of the same transaction constituting the burglary, having been committed at the time of the burglarious entry, and being a part of the same transaction, and the parties the same, the testimony in regard thereto was relevant in the burglary case. We hold that the plea of the defendant in the theft case was admissible in the burglary case. 1 Bish. Crim. Law, sec. 667, subdiv. 3. It is not necessary for us to decide as to the conclusive effect of such judgment, or whether or not it was permissible for the defendant to show that said plea was not freely and voluntarily entered, inasmuch as the court permitted such testimony, and appellant had the full benefit thereof. The judgment is affirmed.

Affirmed.

Hurt, Presiding Judge, absent.