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 1924-12

Bennett v. State , 98 Tex. Crim. 661 ( 1924 )


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  • Appellant was convicted in the Criminal District Court of Dallas county of burglary, and his punishment fixed at two years in the penitentiary.

    Appellant pleaded guilty to the offense charged, and the State introduced in evidence against him, testimony of the local clerk of the Woodman Hall on Ervay Street who swore that he did not give the appellant his consent to enter that place on the occasion of the alleged burglary. There was also introduced a written confession made by the appellant. There seems no question from said confession but that he and others entered the Woodman Hall on Ervay Street in Dallas, broke open a safe and got out of it money which they appropriated. There was no claim of any entry or taking with the consent of any one authorized to give same.

    Appellant's contention before this court is that the evidence is not sufficient because the clerk of said Woodman Camp was not asked if he had the care, control and management of the hall and that, therefore, it was not shown by sufficient testimony that appellant broke and entered the place without consent. It is said in Doans v. State, 36 Tex.Crim. Rep., that one who pleads guilty can not attack the judgment because of the insufficiency of the testimony. Art. 566 of our C.C.P. provides that where a defendant in a felony case persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, a jury shall be impaneled to assess the punishment, and evidence be submitted to enable them to decide thereupon. The purpose of the statute in requiring evidence at all, when there is a plea of guilty, seems based on the proposition that some evidence should be introduced which might be considered by the jury in affecting the penalty or punishment to be fixed by them. A plea of guilty admits the existence of the statutory elements of the crime and we would not feel called upon to reverse because in presenting evidence some element ordinarily provable in making out thecorpus delicti might be overlooked. Gipson v. State,86 Tex. Crim. 364; Bell v. State, *Page 663 86 Tex. Crim. 363; Williams v. State, 86 Tex. Crim. 366; Coats v. State, 86 Tex.Crim. Rep.; Gumpert v. State, 228 S.W. Rep., 237.

    The judgment will be affirmed.

    Affirmed.

    ON REHEARING.