¶1ON PETITION BOB EEHEARING.
¶2What purports to be a petition for rehearing is filed in this case, and an affidavit of the appellant is appended, alleging his innocence of the crime of which he was convicted, and that the reason he did not enter a plea of not guilty and try the case on the merits was because he was advised by his attorney that he had a legal defense to said action, which would in no wise prejudice his right thereafter to avail himself of a defense on the merits of his case. He alleges further that the draft on which he is charged with committing forgery has been by him taken up, paid and discharged in full.
¶3So far as the merits are concerned, it does not appear that this draft was paid before the defendant was convicted of the crime of forgery; but it does appear from all the record in this case that the proposition which is now urged by the appellant in his behalf was not presented to this court upon the argument of the case on appeal. So *562■that, strictly speaking, there is no petition for rehearing now pending. A rehearing presumes a hearing to have been had; but the proposition now urged has never been called to the attention of this court, or to that of the trial court. The record shows that this appellant has had three different attorneys, and that the attorney who now files this petition has been employed since the trial of the cause in this court. As was stated in the opinion filed in this case, the claim of the appellant that he was taken by surprise, or was deprived of any constitutional right, seems to have no merit. He pleaded not guilty in the first instance and, after a considerable length of time, withdrew his plea and refused to plead at all, and the court, on his announcing that he elected to stand upon his demurrer to the information, and on his refusal to plead further to said information,—the said demurrer having been overruled,—adjudged him guilty of the crime of forgery and sentenced him to the penitentiary. Out of an abundance of caution, this judgment and sentence was afterwards revoked and set aside, and the defendant was granted opportunity to show cause, if any he had, why judgment should not be pronounced against him. He was fully advised by the court of the effect of his refusal to plead and was plainly told by the court that, if he continued to refuse to plead to the indictment, judgment would be entered against him. Defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had not, and judgment was then pronounced under the plain provisions of the statute.
¶4We think, in the first place, that there is no proper petition for rehearing presented, and that, treating the application here as a petition for rehearing, it shows no merit whatever. The petition will therefore be denied.