The appellant plead guilty to a charge of assault to murder and asked for a suspended sentence. His case was presented to a jury and he was assessed a penalty of five years in the penitentiary without a suspended sentence. The record shows that *Page 198 the court appointed an attorney to represent him in presenting his plea for a suspended sentence. It shows further that the court admonished appellant of the consequences of his plea of guilty.
The record is before us without bill of exception complaining of the introduction of testimony or any ruling of the court during the trial.
As we understand the things that took place, the appellant had no attorney to represent him when he came into court. The evidence was properly presented which would have authorized the jury to have suspended his sentence had they, in their judgment, felt that it was a proper case to do so. After this a motion for rehearing was duly presented and overruled. Thereafter some friend became interested in appellant and secured other counsel to represent him who prepared and presented to the court a motion asking that he set aside the proceedings; set aside his order overruling the motion for new trial and permit him to withdraw his plea of guilty. Among other things, it is alleged that the appellant was a Mexican who did not understand the English language sufficiently to comprehend the result of his act in pleading guilty. This motion was ably presented and, as we interpret the order of the court thereon, was overruled because the trial court did not agree to the facts or concur in the "equities" pleaded. There is no contention that the trial judge did not have the power to set the order aside and that question is not here passed upon.
We do find in the record what is denominated a bill of exception, which includes the motion filed to set the proceedings aside and grant a new trial. It also includes complaints about various things appearing in the trial, to which no bill of exception was taken at the time. While this instrument was filed in the court below, it apparently had no purpose in that court other than to be transmitted with the record to this court under the name of a bill of exception. It, in fact, is a plea that this court consider the equities of the case; that we substitute our judgment in discretionary matters for that of the trial court. We have no such jurisdiction.
An affidavit was filed originally in this court by the appellant's attorney, setting out facts which, from his standpoint, would, undoubtedly, have appealed to the trial judge. None of these matters, however, may be considered in this court.
It is suggested that even though the appellant had pleaded guilty, it became the duty of the trial court under the facts to *Page 199 withdraw his plea and enter for him a plea of not guilty. This is based upon excerpts from the testimony of appellant in reply to the question as to why he shot Y'Barbo. To this question he replied that when they first met at this particular time, Y'Barbo went around the house and he thought he was going in the house to get a gun; that Y'Barbo went to the door and could not get in and he came back and started off of the porch to the gate and that is when appellant shot him; that he did so because he thought Y'Barbo was seeking to get a firearm with which to shoot appellant.
The court in qualifying the bill of exception made substantially this statement, and added the following:
"The defendant in the trial testified to such state of facts as would have warranted the court in submitting the issue of self defense to the jury had he not entered his plea of guilty."
When a plea of guilty is entered and the proof contains evidence which, if believed, show the innocence of the accused, it may and sometimes does become the duty of the trial court to withdraw the plea of guilty and have entered for the defendant a plea of not guilty. This is most frequently true where the mental capacity of the party on trial becomes a proper question under the evidence for the jury. (Thompson v. State, 77 S.W.2d 538; Edwards v. State, 114 S.W.2d 573; Yantis v. State,255 S.W. 180.)
Judge Davidson said in Harris v. State, 172 S.W. 975:
"If the defendant pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no conviction was had, although a plea of guilty was entered."
See also Villa, et al, v. State, 53 S.W.2d 1023, in which Judge Lattimore says under certain circumstances that it would be a better procedure to have the plea of guilty withdrawn and the case concluded upon the entry of a plea of not guilty.
We agree with the question of law raised, but the facts in the trial judge's certificate and which are quoted as a part of the evidence are not sufficient to warrant a jury in concluding that appellant acted in self defense. If the language of the learned trial judge is to be understood as reaching a conclusion that the testimony which he quotes from the record was sufficient to raise such issue, then we think that conclusion was error and that his certificate does not certify error in the trial. We must consider *Page 200 the entire certificate and would not feel bound by the trial judge's conclusions on a legal question. Pounds v. State,81 S.W.2d 698, 128 Tex.Crim. Rep.[128 Tex. Crim. 519].
We find no error which may be considered by this court. The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.