The judgment was affirmed at a former day of this term, and is before us on rehearing. Appellant insists that where defendant has pleaded guilty it is error for the court to instruct the jury, either directly or by implication, that the plea of guilty is a plea of guilty of the highest grade charged, as was done in this case. In support of this contention appellant cites Sanders v. State, 18 Texas Crim. App., 372; Giles v. State, 23 Texas Crim. App., 281. The statutes provide, if a jury shall find any person guilty of murder, they shall also find by their verdict, whether it is of the first or second degree; or if any person shall plead guilty to an indictment for a murder, a jury shall be summoned to find of what degree of murder he is guilty; and in either case they shall also find the punishment. It does not appear in the Sanders case that any evidence was introduced on the plea. Be this as it may, the case does support appellant's *Page 402 contention that, where defendant pleads guilty to an indictment charging murder in the first degree, it is the duty of the jury to find of what degree of murder he is guilty. However, this case was practically overruled in Blocker v. State, 27 Texas Crim. App., 16. In that case it was held that, the accused being on trial for murder under the law of this State, it is not the duty of the trial judge in murder cases, without regard to the evidence adduced, to instruct the jury as to the law of murder in the second degree; but it was held that notwithstanding the apparent plausible construction of the statute upon which the proposition is maintained, the doctrine obtains in this State that the trial court may decline to submit to the jury the issue of murder in the second degree, when the evidence wholly fails to present that issue. In Martin v. State, 36 Tex.Crim. Rep., we held, on a trial for murder, where defendant persists in pleading guilty to the charge, article 712 Penal Code, requires that two things be done; first, a jury must be summoned; second, evidence must be adduced, and the jury impaneled to find the degree of murder; and this can not be waived. In addition to this, the court should instruct the jury as to the elements of murder in the first, and if necessary, murder in the second degree. The trial is precisely the same under the plea of guilty as under the plea of not guilty. A plea of guilty is not tantamount to a confession of murder in the first degree. Under the facts of the case before us, the evidence conclusively shows appellant is guilty of murder in the first degree; and his plea of guilty, as stated above, will be treated as a plea of not guilty. Where the evidence excludes murder in the second degree, the plea of guilty does not require the court to charge on murder in the second degree. Under appellant's plea of guilty, the court correctly instructed on murder in the first degree only. This was amply authorized by the evidence. But as stated, if the evidence had suggested murder in the second degree, then it would have been the duty of the court to have submitted murder in the second degree. We see no reason for changing the original opinion, and the motion for rehearing is accordingly overruled.
Motion overruled.