Counsel for appellant insists that this court was in error in deciding that the presumption of regularity was in favor of the judgment of conviction unless the contrary affirmatively appear. There is a distinction between the presumption which operates in the trial court and that which operates on appeal. On the trial of the case, the presumptions are in favor of the appellant. He is presumed innocent until his guilt is established. On appeal, the presumption obtains that his conviction was regular and upon sufficient evidence unless the contrary is made to appear. In announcing this distinction, it is conceived that no new rule of law is asserted. The leading case cited by appellant — Martin v. State, 44 Tex. 172 — was one in which, upon the facts, the proof was insufficient. This was ascertained on appeal by an examination of the facts which were brought up, and the remark was made with reference to the record that the appellate court having before it all the facts proved on the trial would not presume there were other facts against the accused. This is the correct rule and one that is uniformly applied, but not better established than that which requires that on appeal the presumption of regularity obtains unless the record reveals the contrary. Among the cases asserting this rule are English v. State, 4 Tex. 125; Carter v. State, 12 Texas Crim. App. 500; 62 Amer. Dec. 539; Farrar v. State, 5 Texas Crim. App. 489; Carr v. State, 5 Texas Crim. App. 153; Yanez v. State, 6 Texas Crim. App. 429, 32 Amer. Rep. 591; Sandline v. State, 6 Texas Crim. App. 347; Montgomery v. State, 4 Texas Crim. App. 140; Nash v. State, 2 Texas Crim. App. 362; Escareno v. State, 16 Texas Crim. App. 173; Thompson v. State, 18 Tex.Crim. Rep.; Johnson v. State, 14 Texas Crim. App. 300; Bohannon v. State, 14 Texas Crim. App. 272; Brown v. State, 32 Tex.Crim. Rep.; Wesley v. State, 57 Tex.Crim. Rep.; Cardenas v. State, 58 Tex. Crim. 109. Statutory provisions are found on the subject in Code of Crim. Proc., Arts. 929 and 938. See Vernon's Tex.Crim. Stat., Vol. 2, p. 889 and 897; also cases listed on pages 892 and 893.
The case of Johnson v. State, 14 Texas Crim. App. 310 was one in which the record failed to show that before the sentence was pronounced, the accused was not asked whether he had anything to say. It was contended that inasmuch as the law required such inquiry to be made, its omission from the recital in the sentence was fatal. Judge Willson, in writing the opinion of the court said:
"We think in such case we are required to presume that the trial court complied with the law, and asked the defendant the statutory question. If a case should arise wherein a defendant had been refused *Page 436 by the court the privilege of the question, and the right to answer it in a legal manner, and such action of the court was presented to us by proper bill of exceptions, we would undoubtedly set aside the sentence, and accord to the defendant his legal right to be heard in bar thereof. But where such a state of case is not presented, we will presume that the trial court has obeyed the directions of the law in pronouncing the sentence."
So, in this case, if it appeared by the motion for new trial or by bill of exceptions properly verified that the accused was within the age which under any circumstances would entitle him to have presented to the jury a plea for a suspended sentence, this court would not hesitate to reverse the judgment because upon such showing the judge of the trial court refused a new trial. In the absence of such information in the record, however, it must be presumed that no such fact existed.
The motion for rehearing is overruled.
Overruled.