Appellant's motion herein consists largely of a repetition of the claimed errors complained of upon the original hearing, and which have been noticed in our original opinion.
His most serious contention now seems to be that he had entered into an agreement with Assistant District Attorney Martin, in which Martin agreed that if appellant would enter a plea of guilty, that the State would not "bear down" hard on appellant, and that appellant's previous record as a criminal would not be mentioned in the trial hereof. In this matter a denial was filed by the Assistant District Attorney under oath, and at the hearing of the motion for a new trial, the issue was joined. The testimony of the appellant's attorney supported his allegation, and he had no further support save that of appellant. C. V. Compton, a Parole Board officer who was present at such conversation, denied having heard such a statement. In fact, he said that nothing was said about using in evidence appellant's previous criminal record. Mr. Haney, who represented a co-defendant, denied having heard such conversation. Mr. Martin's affidavit also denied having any such conversation as alleged by appellant's attorney in his motion. True it is that appellant has attached to his motion a photostat of a letter from Mr. Martin dated long after this case was filed in this appellate court, which appellant contends is contradictory of Martin's sworn affidavit given at the time of the hearing of the motion for a new trial. We cannot consider such matters filed, as was this, long after the case has been closed in the lower court, with no chance for the State to answer such matters, and also, we are not of the opinion that such letter, should same be considered, would be helpful to appellant's contention that his past criminal record would not be alluded to by the State in his trial. Appellant pleaded guilty to robbery with firearms after having received the statutory warning. The testimony of the injured party was clear and convincing that appellant and another put a pistol in his back and took his money and his car; that they were caught in about two or three blocks with the stolen car; that they had the money and the pistol. However, appellant, after his plea of guilt, offered the mitigating defense that he had recently smoked a marihuana cigarette and did not exactly know what he was doing at the time of the robbery; that everything was hazy in his mind. Finally, he testified that he had no intent to rob at *Page 84 the time, whereupon he was advised by the court that if he had no intent to rob, he could not be guilty of robbery and would have to change his plea of guilt; whereupon the question and answer were withdrawn by his counsel, and he again informed the trial court that he was guilty. The court, however, on account of the marihuana incident, gave the jury a proper instruction relative to temporary insanity superinduced by the use of a narcotic, and that such insanity, if thus produced, could only be used in mitigating the penalty if the jury so desired.
The careful trial judge heard the witnesses on this motion for a new trial and evidently discarded appellant's version of an agreement with the Assistant District Attorney, and we confess our inability to see any different solution of the controversy.
The motion further complains because of the fact that a co-defendant is supposed to have received a lighter penalty for his participation in this robbery, and it seems to be his thought that this motion should be granted in order to allow the two penalties to be the same for each offender. Many elements enter into a jury's verdict; possibly they took into consideration the fact that appellant was the person in possession of the pistol, that he threatened to "blow in two" the party robbed; that appellant was driving the stolen car when captured, and had the pistol concealed on his person at such time; also the jury, in the case of the co-defendant, may have been more liberal-minded than appellant's jury. In any event, it is not shown by the record what verdict, if any, the co-defendant did receive, and any argument based thereon is not sound. The statute leaves such punishments open from five years to death, and when a person enters into such a crime, he is bound to know that, under the law, his life could be exacted as a penalty for such an offense. In this case, he has a merciful jury to thank for his verdict.
We see no reason to recede from our original opinion herein, and the motion will be overruled. *Page 85