17 Ohio App. 510 | Ohio Ct. App. | 1923
At the November, 1922, term of the Court of Common Pleas of Perry county, plaintiff in error, Charles Brooks, was indicted for murder in the first degree, in which indictment it was charged, in the usual form, that on the 27th day of November, 1922, said Brooks shot with a pistol one Henry Bums in and upon the left side of his head, with intent to kill, causing a mortal wound, from the effects of which he died. Upon arraignment, the plaintiff in error entered a plea of guilty to the crime charged in the indictment, and afterward, and before sentence, a motion was filed in his behalf to permit him, for reasons stated therein, to change his plea of guilty to a plea of not guilty, which motion was overruled. Thereupon evidence was taken for the purpose of enabling the trial court to determine the degree of the crime, under authority of Section 13692, G-eneral Code, and the' court found and adjudged the plaintiff in error guilty of murder in the first degree and sentenced him according to law. Proceedings are instituted to reverse that judgment and sentence by a petition in error filed for that purpose in this court, which contains numerous assignments of error, as set out therein, but for obvious reasons, in view of the conclusion arrived at by this court, we deem it necessary to discuss but two of the grounds so assigned, namely, the first and second, which might well be merged in one assignment of error under the second ground, namely, abuse of judicial discretion in overrating the motion of the
Barring’ the evidence taken upon the hearing by the trial court to determine the degree of the crime, the bill of exceptions contains a full record of the proceedings had in the court below, including a statement of the court, indicating the several steps taken in the case from the time the indictment was presented until the case was disposed of. While said statement is ex parte, still it is unchallenged, and is to be regarded as a part of the record in the case, and is so treated by counsel for the plaintiff in error in argument.
Assuming, then, that such statement details the several steps taken in the case, was the motion properly overruled? Or, putting the question conversely, was it not the legal right of the plaintiff in error to be allowed to withdraw his plea of guilty, and to be granted a trial by jury, under the circumstances appearing in the motion and his affidavit made thereto in support of the same? He was indicted for the highest crime known to the law, and by the same law he is condemned to die in the electric chair. The law is exacting, but it is nevertheless charitable and merciful. In its method of procedure in the trial of criminal cases it clothes the accused with the presumption of innocence, which continues as his sacred protection until overcome by contervailing proof, and it demands of the state proof of guilt beyond a reasonable doubt before claiming the liberty or life of the accused. But while this is true with respect to one charged with crime, who elects to be placed upon trial, the Legislature of the state has also provided in Section 13692, General Code:
It will thus be seen that the right of trial by jury may be waived by the accused, the constitutionality of which legislative enactment has recently been passed upon by the Supreme Court of this state in the case of State v. Habig, 106 Ohio St., 151. But does such waiver in any wise lessen his statutory rights before entering such plea by confession? He is entitled to the service of a copy of the indictment before arraignment, and under Section 13617, General Code, it is provided:
“After a copy of the indictment has been served' or opportunity had for receiving it * * * the accused shall be brought into court, and, if he is without and unable to employ counsel, such court shall assign him counsel, not exceeding two, who shall have access to such accused at all reasonable hours.”
Without stopping to comment on this humane statutory provision, let us proceed at once to consider the proposition raised by the petition in error, namely, Was the plaintiff in error accorded his legal rights by the ruling of the court below on the motion, or, as claimed in his behalf, was there an abuse of discretion on the part of the court in refusing to allow him to change his plea under said verified motion? According to the statement of the court, the accused was first brought into court on December 8, when “the court stated to the defendant the nature of the charge made against him by the grand jury. He further
It further appears that on Sunday, December 3 0, the accused, after learning what employment of counsel for his defense would amount to, sent a communication to the court, through the sheriff of Perry county, which was delivered, that he would not be able to raise the money to employ an attorney for his defense and that he would accept any attorney that the court would appoint for him.
In its statement the court says that the accused was again brought into court the following day, namely, on Monday, December -11, when the court said to him “that the sheriff had informed him he did not intend to employ counsel and he said that that was correct. He was then arraigned, the court asked him to stand up, and he did so, and the indictment was read to Mm, and the court asked him if he understood the indictment, knew what it meant, and he said he did, and the court thereupon asked him what was his plea, guilty or not guilty, and he said he was guilty.” After ar
"Now comes the defendant, by his attorney, W. A. Hite, assigned to defend him by the court, and moves the court for leave to withdraw his plea of ‘guilty,’ entered by him of December 11, 1922, and to enter a plea of ‘not guilty’ for the following reasons:
"1. That at the time he entered said plea of ‘guilty’ he was worried and confused and frightened and did not properly understand the nature of the plea and of his rights in the matter.
“2. That at the time he entered said plea of ‘guilty’ he was without the advice of counsel by
“3. That he is an uneducated man, unacquainted with court procedure and did not understand the meaning of the thing he was doing when he entered said plea.
“(Signed) W. A. Hite, -
“Attorney for defendant.
“State of Ohio, Perry \Couwty, ss.
“Charles Brooks, being duly sworn, says that he is the defendant herein, and that the facts and allegations in his foregoing motion are true.
“(Signed) Charles Brooks,
(Notarial seal.)
“W. A. Hite, Notary Public.”
From the foregoing it appears that the accused when first brought into court was of the opinion that he had property that would enable him to employ counsel of his choice, and so stated, but after learning what his defense would cost him abandoned that idea and accordingly sent a message to the court with the request that he assign him counsel. Evidently he recognized the necessity of having counsel, as did the court, for in its statement the court said that “the court assumed to know that he would not be able to conduct his own defense.” Of course, if a defendant charged as the accused here was charged, was able to procure and had procured counsel of his own choice before his arraignment, he need not invoke the benefits of Section. 13617, General Code, nor would the court after making such inquiry of him, under such circumstances, undertake to assign him counsel. But how was it here in this instance? The plaintiff in error was indicted for first degree murder. At first he stated that he would employ his own counsel. Afterward, and before arraignment, he ascertained that he was. not able to employ counsel for his defense, and so advised the court, as the sheriff states, or, as the court states, “he understood that he did not intend to employ counsel.” What, then, was the duty of the trial court in respect to providing accused with counsel before his arraignment? Was it his duty to assign him counsel? Section 13617 reads: “If he is without and unable to employ counsel, such court shall
Was there an abuse of judicial discretion in overruling the motion of the accused, verified as it was, for leave to enter a change of his plea to
Counsel for the state argue that the defendant below was precluded from reopening the case after his plea of guilty was entered, because such plea was a finality. The law is not so technical, especially when dealing with the liberty or life of a citizen, and in the trial of a case it is recognized
On behalf of the state we are cited to the case of Lee v. State, 32 Ohio St., 113, which was an indictment for a misdemeanor, to which the defendant first entered a plea of not guilty, then withdrew such plea and entered a plea of guilty. Afterward he sought to withdraw the plea of guilty and enter a plea of not guilty, which the court, in the exercise of a judicial discretion, refused to allow him to do, and the apparent reason for a change of his plea was the intervention of a second indictment found against him pending the unpaid judgment on the first indictment, a totally different case in principle from the case at bar, on the facts, and, although involving the inherent power of the court to exercise judicial discretion, it seems that the court felt called upon in vindication of its own prerogative to refuse the last application made, because of the change of the plea then already tendered, which it appears was founded upon a misapprehension of facts. The case cited furnishes an apt illustration of the oft-
While the question here made has not been directly passed upon by the courts of this state, we find kindred questions, if not the same, passed on in other jurisdictions and treated at length in several of the textbooks on criminal procedure, among them 2 Bishop’s Criminal Procedure (2 ed.), Section 798, wherein it is laid down:
“The practice of withdrawing one plea to make way for another, heretofore explained, is especially common where the defendant has improvidently pleaded guilty. In most of our courts, whore leave to substitute not guilty is asked in a reasonable time, it is granted pretty nearly as of course. Yet it is sometimes refused; and being a matter of judicial discretion, relief will not ordinarily lie granted in the upper court, but it will be in a case of abuse of the discretion, even where, after a defendant has pleaded guilty, has moved in arrest of judgment, and his motion has been overruled, the court, if justice requires, will allow a substitution of not guilty for guilty.”
The same doctrine is to be found in 8 Ruling Case Law, 111, 'Section 77, and Underhill, Criminal Evidence, Section '237.
While it is conceded that a change of plea rests in the discretion of the court, such discretion should not be exercised arbitrarily, but should rest on settled and irreversible principles of justice, with a due regard to existing conditions. In discussing this subject it is laid down in 16 Corpus Juris, at page 398:
In Pope v. State, 56 Fla., 81, 47 So. Rep., 487, it is held:
“While the trial court may exercise discretion in permitting or refusing to permit a plea of guilty to be withdrawn for the purpose of pleading not guilty, yet such discretion is subject to review by an appellate court.
“A defendant should be permitted to withdraw a plea of guilty given unadvisedly when application therefor is duly made in good faith and sustained by proofs, and proper offer is made to go to trial on a plea of not guilty.
“The law favors trials on the merits; and if the discretion of the trial court is abused in denying leave to withdraw a plea of guilty and to go to trial on the merits, the appellate court may interfere.”
The Pope case then cites Krolage v. People, 224 Ill., 456, wherein under a statute of that state it is held: “Leave to withdraw a plea of guilty should be granted where the ends of justice will be best subserved by permitting a plea of not guilty in its stead, and particularly where the consequences of the plea were not fully explained to
In Dobosky v. State, 183 Ind., 488, it is held: “Where the record clearly discloses that the trial court abused its discretion in refusing to permit an accused to withdraw a plea of guilty, the court on appeal will review the ruling and correct the error, even where the application for such leave is made after judgment.”
In State v. Stephens, 71 Mo., 535, in the course of the opinion, the court holds, at page 53'6:
“The law is not composed of a series of snares and pitfalls for the unwary, neither does it favor what Judge Bliss terms ‘snap judgments.’ Henslee v. Cannefax, 49 Mo., 295. If these remarks apply in a civil case, then a fortiori, do they apply in a criminal prosecution, where the liberty of the prisoner is at stake.
“Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.”
In the City of Salina v. Gooper, 45 Kan., 12, on page 15, the judge speaking for the court says:
“All fairness should be accorded to a defendant in a crimnial case, in every stage of an examination or trial. No advantage should be taken on account of his being in court without counsel. It always should be one of the first duties of a court, where a defendant is charged with a crime and is about to be called upon to plead, to inquire whether he has or is able to procure counsel; and if not, and he desires it, to see that he has an attorney to represent him. When á plea of guilty has been
In State v. Maresca, 85 Conn., 509, it is held:
“If an accused, unrepresented by counsel, pleads guilty without fully understanding the questions propounded to him and the significance and effect of Ms answers and of his plea, the sentence thereupon imposed should be opened and he should be permitted to withdraw his plea.”
In United States v. Dixon, Federal Cases, No. 14968, it is held:
“The court will suffer the prisoner to retract his plea of guilty in a capital case, and plead not guilty. ’ ’
In Deloach v. State, 77 Miss., 691, 27 So. Rep., 618, the court, in discussing the subject of a change of plea of one charged with a felony, says:
“The defendant should be permitted to withdraw his plea of guilty, when unadvisedly given, where any reasonable ground is offered for going to the jury. This is a matter within the discretion of the court, but a judicial discretion which should always be exercised in favor of innocence and liberty. All courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits if possible.”
In People v. Miller, 114 Cal., 10, while conceding that application for a change of plea rests in the sound discretion of the trial court, in discussing such application the court says at page 16:
“The law seeks no unfair advantage over a defendant, but is watchful to see that the proceed
An interesting case on the subject under discussion is Gardner v. People, 106 Ill., 76, where it appears that a young man who had lately come to this country from Germany, and who was ignorant of the English language, was indicted for murder, and, without the appointment and advice of counsel, enteréd a plea of guilty through an interpreter. The court then pronounced the sentence of death and afterward refused an application of the defendant to withdraw -his plea. In passing upon the case, at page 84, the Supreme Court, among other things, said:
“¥e have no doubt the accused understood he was charged with the killing of the deceased, and also that he did not wish to deny that fact; yet, at the same time, we think it highly improbable that he understood the difference between a charge of murder and a mere charge of taking life, or that one might be proved guilty of killing another and yet not be guilty of any offense at all, or at. least of the offense of murder. Even admitting the court would be justifiable in entering a plea of guilty upon admissions thus obtained (which we have just seen it would not), it is clear the ■admission of the accused in this case that he killed
This case illustrates the necessity of an accused, having the benefit of counsel before entering a¡ plea in a first degree homicide case, that he may know of the nature of the charge and of the eonse-, quences of such plea — that he may be advised of the constituent elements of the charge, in law,. and that, if guilty, the law imposes the punish-, ment of death. It would seem that the method suggested is but the application of the rule of reason and is nothing short of the exercise of a-sound judicial discretion. Lord Mansfield says: .
“Discretion, when applied to a court of justice, means sound discretion, guided by law.”
The humanity of the law does not demand the. forfeiture of human life without the benefit of trial, if requested. In the case above cited, we have a human being standing at the bar of justice, charged with first degree murder, pleading for the con-, stitutional right of being tried by a jury of his peers. Was it the exercise of judicial discretion to deny him that privilege? The court answered this in the negative.
We do not feel called upon to further extend this opinion in discussing this feature of the case, except to add that our investigation of the authorities generally, in the reported cases in the various states, shows that they are substantially uniform in holding that while it is in the discretion of thé
The clerk of courts of Perry county is instructed and directed to malee the usual order for the return of said Charles Brooks to the custody of the sheriff of Perry county, there to remain to await further proceedings in the case.
Having reached the above conclusion, which will result in the case being remanded for trial, for obvious reasons of propriety we omit expressing an opinion on the other questions raised.
Judgment reversed,, .and cause remanded.