Commonwealth v. Ingersoll
14 N.E. 449
Mass.
1888
Check Treatment
Morton, C. J.

If the defendant in a criminal case pleads guilty, he cannot afterwards retract his plea and plead anew, except by leave of the court. If, therefore, a defendant pleads guilty in a municipal or police court, and appeals from the sentence to the Superior Court, he cannot of right claim a trial by jury, but is liable to be sentenced upon his original plea in the court below, unless the court gives him leave to plead anew. Commonwealth v. Mahoney, 115 Mass. 151. A plea of nola contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such a plea, as well as upon a plea of guilty, and such plea, if accepted, cannot be withdrawn, and a plea of not guilty entered, except by leave of court. But there is a difference between the two pleas, in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion.

If the plea is accepted, it is not necessary or proper that the court should adjudge the party to be guilty, for that follows as a legal inference from the implied confession, but the court proceeds thereupon to pass the sentence of the law. Commonwealth v. Horton, 9 Pick. 206.

In Commonwealth v. Adams, 6 Gray, 359, the complaint was founded upon the St. of 1855, c. 215, § 35, which provided that “ no admission of the defendant, made in court, shall be received on the trial, without the consent of the prosecutor, except a plea of guilty;” the defendant pleaded nolo contendere in the Police Court, but the record did not show that the plea was received with the consent of the prosecutor. This court held that such consent must appear of record, and that, as it did not so appear, judgment entered upon his plea by the Court of Common Pleas, to which the defendant had appealed, was *383erroneous, and that he had the right to plead anew, and to be tried by a jury.

Applying these principles to the case at bar, it follows that, if it appeared by the record of the Police Court, to which the complaint was made, that the defendant’s plea of nolo contendere was accepted by the court, the Superior Court, upon appeal, could sentence him upon his plea, and decline to permit him to plead anew.

The only difficulty arises from the obscurity of the record of the Police Court. It recites that the defendant, “being asked whether he is guilty or not of the offence within charged upon him, pleads nolo contendere, but, after hearing divers witnesses duly sworn to testify the whole truth, and fully understanding the defence of said defendant, it is adjudged by the said court that said defendant is guilty of said offence.” This record does not state that the court accepted the plea. The latter part of the record above cited implies that the court did not accept the plea, but proceeded to hear witnesses, and adjudged the defendant to be guilty, as if he had pleaded “ not guilty,” or had stood mute. If the record had stated that the defendant pleads nolo contendere, and thereupon the court passes sentence upon him, it might be held that it showed an accepted plea, although not directly stated to have been accepted, because in such case the action of the court upon the plea would import that it was accepted. „ But in this case the record implies, not that the court passed sentence upon the plea of nolo contendere, but upon an adjudication, after hearing witnesses, that the defendant was guilty. To say the least, the record does not certainly show that the plea was accepted and sentence passed thereupon; and we are of opinion that the defendant had the right to plead anew in the Superior Court, and to have a trial by jury.

Exceptions sustained.