Griffin v. StateGriffin v. State
- Reporters:
- , ,
- Before:
- Pottle
Thе Athens Trust and Banking Company failed, and, in consequence, a number of indictments were returned by the grand jury of Clarke county against.Griffin, the-‘president, and Mc-Crary, the. cashier. One of the indictments charged a violation of section 205 of the Penal Code, in that the defendants accepted a deposit of‘ÍSSl.lO, knowing at the time that the bank was insolvent, and failed to pay it to the depositor on demand. To this indictment the accused entered a joint plea of “guilty, with recommendation that they be punished as for a misdemeanor.”’ A sentence of five years in the penitentiary was imposed on each of the defendants. Immediately after- sentence was pronounced and before it was handed to the clerk or recorded on the minutes, the accused moved orally to be allowed to withdraw their plea, of guilty and enter a plea of not guilty, basing their motion upon -the ground that they had been induced to plead guilty upon the assurance , of the solicitor-general and other State’s counsel employed to assist him that the presiding judge would impose- sentence as for a misdemeanor. The oral motion was denied, but the court took a recess to a later date, to allow the accused to put their motion in writing and support the same by affidavits. When the court reconvened, the written motion, together with certain affidavits, was submitted, and there was also presented a written motion to set aside the judgmеnt of conviction, both motions being based upon the same grounds-and supported by the same evidence. Neither motion was granted, and each of the accused has prosecuted a writ of error to this court. The cases being identical, they were argued together, and they will be dealt with together in the opinion.
*618
The ruling so often made by the Supreme Court, and this court that the discretion of a trial judge will not be controlled, unless manifestly abused, means simply that the reviewing court will not control his finding of facts upon conflicting evidence. If upon these facts an erroneous finding of law be rendered, it will be set aside, but if that judgment be sound as applied to his finding of facts, the reviewing court will not interfere. See Jackson v. State, 99 Ga. 209 (25 S. E. 177), where a judgment refusing leave to withdraw a plea of guilty was affirmed. It is really misleading to speak of the trial court’s action as an abuse of discretion. Men’s rights, both of person and of property, are regulated by fixed legal principles. In passing upon them, whether at law or in equity, the cоurt must regard these principles. It has neither discretion nor power to do otherwise. If the judge fails to apply them in a given case, he has simply made an erroneous judgment, which can be corrected on review. Primarily, a motion to withdraw a plea or to set aside a judgment of conviction in a criminal case is addressed to the discretion of the presiding judge. He *622hears the reasons for the motion and the evidence in support thereof. If these reasons be good in law and the evidence be undisputed, the matter is no longer one of discretion, but the motion prevails as a matter of legal right. If the prisoner says, “I entered the plea because of a promise that leniency would be shown me, and this promise has not been complied with,” and if this be true and be also a good reason in law for ‘allowing the plea withdrawn, then the court has no alternative. The case is taken out of the realm of judicial discretion and the right to withdraw becomes a legal right which must be accorded him. The general rule is that in passing upon the facts, whatever discretion the court has ought to be exercised liberally in favor of the prisoner. State v. Williams, 45 La. Ann. Gas. 1356 (14 South. 32).
In Krolage v. People, 224 Ill. 456 (79 N. E. 570, 8 Ann. Cas. 253), the rule is thus stated: “The withdrawal of a plea of guilty ■should not be denied in any criminal prosecution, where it is evident that the ends of justice will be subserved by permitting the substitution of the plea of not guilty. The defendant in a criminal prosecution should be pеrmitted to withdraw his plea of guilty when unadvisedly given, where any reasonable ground is offered for .going to the jury; and while this is a matter within the discretion of the court, the discretion is a judicial one which should always be •exercised in favor of innocence-and liberty.” In State v. Stephens 71 Mo. 535, the1 accused were induced to enter a plea of guilty under the belief that the punishment would be less than the maxh mum, this belief being induced by the representations of their own counsel, made after a conference with the judge. It was held, in substance, that the court erred in refusing to allow the pleas to be withdrawn, without reference to whether the judge himself did any thing to mislead the accused or their counsel. Amongmther things the reviewing court said: “Courts have always bеen 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 State v. Kring, 71 Mo. 551, the accused was permitted to withdraw bis plea of guilty, after sentence, upon the showing that the plea had been entered in consequence of an agreement with the State’s counsel, “apparently sanctioned by the judge,” that the sentence should not exceed a certain term of years. In Mounts v. Commonwealth, 89 Ky. 274 (12 S. E. 311), it was said that after sentence the accused should be permitted to withdraw his plea of guilty, which he was induced to enter by the threats or promises еither of the court -or of t]ie Commonwealth’s attorney. Where a plea of guilty in a *624murder case was entered by a prisoner through fear that he would be hanged by a mob, he was allowed to withdraw the plea after sentence. Little v. Commonwealth, 142 Ky. 92 (133 S. W. 1149, 34 L. R. A. (N S.) 257, Ann. Cas. 1912D, 241). In those cases where the right to withdraw was denied, the prisoner was not misled into the belief that he. would receive -a lighter punishment, and in most‘of the cases the ruling was distinctly put upon the ground that the prisoner was not thus misled. State v. Richardson, 98 Mo. 564 (12 S. W. 245); United States v. Bayaud, 23 Fed. 721; Beatty v. Roberts, 125 Iowa, 619 (101 N. W. 462); Pope v. State, 56 Fla. 81 (47 South. 487, 16 Ann. Cas. 972); People v. Lennox, 67 Cal. 113 (7 Pac. 260). In State v. Reininghaus, 43 Iowa, 149, it was held that the mere statement by the prosecuting attorney of his opinion in reference to the punishment which would be imposed, coupled with the statement that he had no control over the matter, afforded no reason for allowing the plea to be withdrawn.
Of course, neither the solicitor-general nor any other counsel has authority to bind the court in the matter of the punishment to be imposed. Indeed, an extrajudicial agreement by the judge himself would not bind him. Notwithstanding such a promise he might impose a different penalty, and his action in this respect could not-be controlled. But if such a promise should be made by the judge, to induce a plea of guilty, and, after the plea was entered the promise should be violated, no one would contend that the prisoner ought not to be allowed to withdraw his plea and have a trial. This would be so, not so much because the judge had broken a promise which he had no right to make, but because the prisoner had been misled to his injury, and had been induced to make a confession by a hope of reward. Now what difference can it make if the hope of reward is engendered by a promise of the State’s attorney rather than of the judge. The solicitor is the State’s representative; his advice and recommendations are generally followed by the court. Ordinarily a motion to nol. pros, made by him is granted, and so is his advice generally accepted that a plea of guilty be received with a recommendation for a misdemeanor punishment. ‘ Prosecuting attorneys usually are ‘able and conscientious public officers, having to a marked degree the confidence of the public and of their prоfessional associates. Well nigh any attorney representing one accused of crime would unhesitatingly accept an assurance from the *625solicitor-general that if a plea of guilty with a recommendation should be entered, the recommendation would be respected by the court. It is very reprehensible for counsel for a person accused of crime to seek to have the judge commit himself in advance in reference to the punishment to be imposed, and it is even more reprehensible for the judge to so commit himself. And while the practice of endeavoring, in advance of a plea of-guilty, to obtain through the State’s attorney a promise from the court in referеnce to the penalty to be Imposed is not to be commended, yet if it be done and the prisoner and his counsel be thus misled, who shall say that the confession may not be withdrawn? The situation is exactly the same,.so far as the prisoner is concerned, if he be misled, not by a promise made by the court, but by an assurance from the prosecuting attorney, or of special counsel employed to assist him and whose services both he and the court accept.
When the case was called it was-ascertained and stated in open court that the accused had paid over all the money they could raise. Thereupon an order was passed by the presiding judge, directing that all of the indictments save the one which had been called for trial be settled upon payment of costs. The other indictments *627having been settled, the plea of guilty with a recommendation was received. It must be assumed that before passing this order the judge made the preliminary investigation required by the statute. See Penal Code, §§ 981, 982. If this order was passed and the stipulated amount of money paid over by the accused, the agreement into which the counsel had entered, although wholly illegal and vоid, was partly executed, and the accused had a right to assume that the remainder of the agreement would be executed by the imposition of a misdemeanor sentence. Mr. Lumpkin, of counsel for Mr. McCrary, remarked in the hearing of the solicitor-general at the time the plea was entered (though it does not appear whether the presiding judge heard the statement) that “we are pleading with the understanding that we are to be punished as for a misdemeanor.”
The accused and their counsel all depose on oath ‘as emphatically as possible that they were misled by statements of counsel for the State into the conviction that a fine would be imposed upon the accused. After the plea was entered and before sentence was pronounced, the presiding judge began the reading of a preliminary statement which had been previously prepared, from which we quote the following: “As I understand it, the proposition to settle these eases is this: These defendants have entered a plea of guilty in one of the felony cases, with recommendation on the part of the State’s counsel and the solicitor-general that they be punished as for a misdemeanor and.that a fine be imposed; and that all other cases pending against them be nol. prossed, and this has been done and the cases stricken from the docket. Mr. Griffin’ is to turn over to the receivers about $1,600, out of which, I have just been privately informed, his fine must be paid. He has paid to a depositor, whose name was not given, $250. In addition to this, the account which he holds against the bank as president, and the accounts he controls for two depositors, are to be surrendered to the receivers or cancelled. Mr. McCrary is to pay about $2,000 to the receivers. This‘money is not to be paid to the receivers and these accounts not surrendered, unless the court carries out the agreement recommended.” In reply to counsel’s contention that they moved to withdraw their plea before sentence was pronounced, the trial judge certifies: “This statement was made by.the court and these sentencеs were pronounced by the court upon these defendants before *628Judge Holden or Mr. Lumpkin opened their mouths. I was reading a statement which I had prepared (which is hereby made a part of this and identified as such by the judge’s signature), and when nearing that portion of it which would indicate to counsel what the court was going to do, I deliberately and purposely stopped reading the statement and pronounced the sentence of the court; which was done, as stated, before Judge Holden or Mr. Lumpkin said a word. After this was done, Judge Holden arose from his seat, and after addressing the court in the words, ‘If your honor please,’ or ‘if the court please,’ I interrupted him and said, ‘Judge, I have already sentencеd these defendants to the penitentiary for a term of five years each.’ Judge Holden then replied, and for the first time, that he wanted to withdraw his plea of guilty, that he had inquired and had been advised that it was the custom in this circuit to allow a plea of guilty to be withdrawn. I then stated that for fear that something like this might happen, I had on the day before instructed the court reporter to go to the solicitor’s office and get two blank felony sentences and fill them out in these cases, one against each of these defendants, which he did; and that he had written the same out and delivered to me, and that the same had been signed, with the term of sentence put therein, by the judge at the time when the court orally pronounced said sentences, as aforesaid. I also stated that these written sentences were then lying before me on the desk. All of which occurred before any motion to withdraw the pleas of guilty was made.” From the foregoing statement of his honor it must be apparent that he was fully cognizant .of the terms of the agreement into which counsel had entered, and knew that the plea was entered upon the understanding and in the belief that a misdemeanor punishment would be imposed. It is also apparent, from the statement of the trial judge, that counsel for the accused were not lacking in diligence, and that they moved at the first opportunity presented them after ascertaining that a felony sentence would bе imposed. The trial judge properly declined to commit himself in reference to the punishment, but it can not admit of doubt that the accused and their counsel were misled by representations made by counsel for the State. These gentlemen are attorneys of high standing, and the sincerity of their statements can not be questioned.
In the statement of the trial judge which accompanies the record, *629the following appears: “Neither of the defendants have at anytime ever consulted with the judge about these cases. The judge has at no time intimated or expressed any opinion to either one of the attorneys for the defendants, or the State, that he would allow said cases to be settled upоn any sort of terms, or that he would concur in any agreement which the parties might enter into, .or carry out any recommendations which they might make. In short, no attorney connected with these cases, either for the State or the defendant, and no other human being, knew what sort of sentences would be imposed in these cases, until they were pronounced by the judge on the bench. . . Every juror, the court reporter, the officers of court, the attorneys present in court at the time (those whom I remember seeing being Messrs. W. M. Smith, J. J. Strickland, Howell C. Erwin, J. B. Gamble, and Judge Andrew Cobb), knew that the court sentenced these defendants to the penitentiary for five years each, before any motion was made to withdraw their pleas оf guilty. They also know that Judge Holden, Mr. Lumpkin, Mr. Tuck,- Mr. Green, and the solicitor-general plainly and emphatically disclaimed any knowledge of what the court would do, or whether the judge would approve the settlement proposed or not,—each voluntarily and unqualifiedly making the statement in.open court that they had no sort of promise or agreement or expression from the judge, and no intimation whatever, that he would approve said settlement, or concur in the recommendations being made. So much for this. ... At this conference I said nothing to lead the gentlemen present to believe that I would approve the proposition to settle, which they outlined. I did not express nor intimate any opinion as to what I would do in reference thereto. On the contrary, as heretofore stated, I distinctly told them that I didn’t know what I would do, and that I would not know until the matter oame to a head and was put up to me in court. . I confess, however, that all doubt and uncertainty were removed and that I instantly made up my mind definitely what I would do, -when, in answer to my question, namely, ‘What is to become of this money so offered, if the court does not approve the settlement recommended?’ Mr. Green replied, e It would be turned back to the defendants;’ and especially so when, shortly thereafter, he privately told me that the agreement was that Griffin’s fine was to come out of the money which he was offering to pay.”
*630The trial judge passed upon these motions in the light of his own consciousness that he had done nothing to mislead counsel for the accused; and he took the view that, as the counsel had no authority to bind him, the accused in entering their plea took the risk of his approving the recommendation. All this is unquestionably true, but does it follow that they ought to be deprived of a trial? Their waiver of trial was made under a misapprehension. It may be that they ought not to have relied upon the statements of State’s counsel, but it is undisputed that they did so, and in so doing .we do not think they were guilty of such negligence as to deprive them of the right to withdraw their waiver of trial. That they were misled can not admit of question. This is the important thing; it is of less consequence that they ought nоt to have been misled. On its face the plea was an unconditional plea of guilty to a felony, but it was not so in fact. The accused thought they were pleading upon the condition and understanding that their offense would, for the purposes of punishment, be treated as a misdemeanor. We do not think they were guilty of such negligence in having this belief as to deprive them of the right to join issue with the State and to be tried by a jury of their peers. No harm can result to the State in allowing this to be done. If .the accused are guilty, it must be assumed that a jury will find them so. If not, they ought not to be punished even by their own consent. The State does not seek a victim, and society is as much concerned in protecting the innocent as in punishing the guilty. It wаs discretionary with the trial judge whether he would receive the plea of guilty at all. If he knew that it was entered under the mistaken belief, engendered by an agreement of State’s counsel, that the punishment would be less than the maximum, the plea ought not to have been received until the accused had been admonished that the judge would not be bound by any such agreement. Of course, in theory, the accused knew that this was true; but if they in fact‘honestly thought the agreement would be carried out, then they ought to have relief from the plea. If the State is not bound by the agreement its counsel made, then the accused ought not to be held to their waiver made on the faith of such agreement. That the accused were actually misled by the representations of State’s counsel is undisputed, and, as illustrating the strong conviction of these able and upright attorneys that the accused had been misled by their *631statements, when the trial judge in the exercise of his discretion refused to abide by their agreement, they retired from the case and declined to attempt in the reviewing court to sustain the sentences imposed upon the accused. Though the trial judge did not intend to mislead the accused or their counsel, the reception of the plea without an admonition as to the possible consequences may have had and, under the circumstances, probably did have this effect; and it seems to us that the ends of justice will better be subserved by аllowing the accused to go to trial.
Judgment reversed.