Appellant was indicted, charged with violating the prohibition law. When the case was called for trial he entered a plea of guilty, but filed a prayer asking a suspension of sentence during good behavior. The jury refused to suspend the sentence, and returned a verdict assessing the penalty at one year confinement in the penitentiary. On the next day he employed the attorneys who prosecute this appeal, and they filed a motion asking that the judgment be set aside because no evidence had been adduced on the trial tending to show him guilty of the offense; and when the motion for new trial was overruled a bill of exceptions was reserved to the action of the court in overruling the motion. In approving the bill the court approves it with the following qualification: "That when the indictment was read to the jury the defendant, in person, pleaded guilty, after being admonished by the court, and, in open court and before the jury, expressly waived the introduction of affirmative proof by the State."
The motion for a new trial alleging such grounds was not sworn to by appellant nor any other person; consequently it would not have properly raised the question that no evidence was adduced on the trial, that not being a matter shown by the record — the judgment record evidencing that evidence was heard, it reciting, "A jury was duly empaneled and sworn, who having heard the indictment read, the defendant's plea of guilty thereto, and having heard the evidence submitted," etc., returned into open court a verdict finding appellant guilty. But when appellant reserves a bill of exception to the action of the court in overruling his motion for a new trial, the trial judge certifies over his signature that no evidence was heard, saying the appellant in open court in person waived the introduction of evidence. So the sole question presented is, could a person who is on trial, being sane, waive the introduction of proof? It has often been held, that an admission by the person on trial in open court of a fact renders it unnecessary to prove that fact. (Kearse v. State, 68 Tex.Crim. Rep..)
Appellant relies on article 566 of the Code of Criminal Procedure, which provides that when a plea of guilty is entered and the punishment is not absolutely fixed by law and beyond the discretion of the jury to graduate, a jury shall be empaneled to assess the punishment, *Page 206 and evidence submitted to enable them to decide thereon. It is true there are many cases holding that the provisions of this article are mandatory; that it is not intended solely for the benefit of the defendant, but is also intended to protect the interests of the State by preventing aggravated cases from being covered up by a plea of guilty and so allow the criminal to escape with the minimum punishment. Josef v. State,33 Tex. Crim. 251, 26 S.W. Rep., 213, and cases cited in Vernon's Procedure under this article on page 289. But in none of those cases is the question of "waiver" raised, discussed or decided.
While article 566 reads as above stated, yet we have another article of the Code, article 22, which provides: "The defendant in a criminal prosecution may waive any right secured him by law, except the right of trial by jury in a felony case," and the provisions of this article of the Procedure is as binding upon courts as is article 566. They were both enacted as a part of the original Code of this State, and brought forward in each codification.
If the appellant could waive the introduction of evidence, the record discloses he did so in person specifically when his attention was called to the matter, for the court says in the same paragraph where he certifies no evidence was introduced: "The defendant in person in open court expressly waived the introduction of affirmative proof by the State." He is now in no position to complain, for the jury assessed the lowest penalty authorized by law, and the State's attorney must be held to have also waived the rights of the State in this proceeding. We might question the propriety of the trial court accepting such waivers, but when the court has done so and the record discloses that the appellant waived his rights under article 566, as he was specifically authorized to do by article 22 of the Code, he can not thereafter, after verdict is rendered, because the jury did not suspend his sentence, withdraw a waiver he solemnly entered into in open court. In Hancock v. State, 14 Texas Crim. App., 392, Judge White says: "Defendant agreed to the submission of the testimony, and but for his agreement doubtless it would never have been offered in this shape. He can not be heard to complain where he was a party to, and where his own action brought about, the very matter of which he complains. He could waive the presence of the witnesses if he so desired, and agree that if present they would swear as they had previously done. In fact, he could waive any right guaranteed to him by the Constitution and laws, except the right of trial by jury."
The facts in the Antonio Diaz case are the same as in this case, the record being in the same condition, and for the reasons here stated it should also be affirmed.
Affirmed.