This conviction is for the theft of a horse, and was had upon a plea of guilty made by the defendant in open court, in due form of law. (Willson’s Cr. Forms, 688, and authorities cited in note.) But it affirmatively appears from the judgment entry in the case that no evidence was introduced upon said plea of guilty.
It is provided by statute that “ If the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereon.” (Code Crim. Proc., arts. 519-534.) We regard this provision as mandatory, and in our opinion it is fundamental error to disregard it. It is not a provision, in so far as it requires evidence to be submitted, which is intended solely for the benefit of the defendant. It is intended, also, and more especially, to protect the interests of the State, by preventing aggravated cases of crime to be covered up by the plea of guilty, so as to allow the criminal to escape with the minimum punishment fixed by law. (Paul v. The State, 17 Texas Ct. App., 583.) In all such cases this provision of the statute should be fully observed and administered, and the better practice would be to have the judgment entry show affirmatively that evidence was adduced upon the plea of guilty. (Willson’s Cr. Forms, 760.)
Because the court erred in not causing evidence to be submitted to enable the jury to decide upon the punishment, the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered November 25, 1885.]