Opinion op the Court by
Judge Settle —
Reversing.
Appellant appears to have been arrested under a warrant from the court of Ed Meglemery, a justice of the peace for Jefferson county, charging her with a breach of the peace. The trial took place in the justice’s court without the intervention of a jury, and, upon her plea of guilty, that court rendered a judgment of conviction whereby her punishment was fixed at a fine of $100 and 50 days imprisonment in jail. The judgment recites that its execution would be suspended 10 days “upon the request and motion of the defendant. ” Below the judgment are these words and signature: “I have read the above judgment, and it meets with my approval. Louise Bullock Holtman.” Shortly after the rendition of the foregoing judgment appellant prosecuted an appeal therefrom to the circuit court. In the latter court appellant, upon or be*713fore the calling of the ease for trial, moved to withdraw the plea of “guilty” made by her in the magistrate’s court, and offered to enter the plea “not guilty.” At the same time counsel for the Commonwealth moved for a judgment against her on the face of the papers. The circuit court overruled both motions, and, upon its own motion, dismissed the appeal. Appellant thereupon entered motion to set aside the order of dismissal and for a trial of her appeal, filing in support thereof her affidavit to the effect that she would, if afforded the opportunity, prove that she did not voluntarily enter in the magistrate’s court the plea of guilty; and that such plea, as well as the entry on the records of that court expressing her approval of the judgment rendered by the magistrate, was made under fear and duress. Her motion, however, was overruled by the circuit court, and, from the order dismissing the appeal in that court, she prosecutes the present appeal.
The dismissal of the appeal by the circuit court was error. Even if the appellant had not attempted to withdraw the plea of guilty after the case reached that court, she nevertheless had a right to introduce evidence to mitigate the punishment; the magistrate having gone to the maximum limit in fixing it, both as to fine and imprisonment. As said in Cornelison v. Commonwealth, 84 Ky. 592, 8 Ky. Law Rep. 794, 2 S. W. 236: “When the plea of guilty has been entered, the Commonwealth to increase, and the defendant to mitigate the punishment, has the right to introduce testimony to enable the jury (or court) to render a true verdict (or judgment) when making the inquiry as to the extent of the punishment.” Mounts v. Commonwealth, 89 Ky. 277, 12 S.W. 311" court="Ky. Ct. App." date_filed="1889-11-09" href="https://app.midpage.ai/document/mounts-v-commonwealth-7132243?utm_source=webapp" opinion_id="7132243">12 S. W. 311, 11 Ky. Law Rep. 474. We are of opiinon, however, that appellant’s *714plea of guilty in the justice’s court did not prevent her taking an appeal to the circuit court, or deprive her of' the right to a trial in that court upon the charge contained in the warrant originating in the justice’s, court; and, if entitled to a trial in the circuit court, she had the right at any time during the trial, and before judgment was rendered in that court, to withdraw the plea of guilty previously entered in the justice’s court, and in lieu thereof enter a plea of not guilty. Criminal Code of Practice, section 366, provides*: “Upon the appeal the case shall be tried (in the circuit court) anew, as if no judgment had been rendered, and the judgment shall be considered as affirmed if judgment, for any amount be rendered against the defendant, and thereupon he shall be adjudged to pay the costs of the appeal.” If there can be in the circuit court a trial de novo, it necessarily follows that the defendant (appellant) upon or before entering into the trial in that court should and must enter his plea to the warrant, which in the instant case could only have been a plea of “guilty” or “not guilty.” The right of appeal in, such a case as this is conferred by section 362, Criminal Code of Practice, which provides: “If a judgment against a defendant on a trial before a county judge, or in a justice’s court, or in a city or police court, unless otherwise provided in the statute, creating or regulating it, be for imprisonment or for a fine of $20.00 or more, he shall have the right to appeal to the circuit court of the county in which the judgment is. rendered. ’ ’ The manner of taking the appeal is regulated by section 364, but neither in that section, those-supra, or any other of the Criminal Code of Practice- or Kentucky Statutes of 1903, have we been able to find a provision restricting a defendant’s right of appeal to the circuit court from a judgment of con*715viction for a misdemeanor rendered in the county, police, or a justice’s court to cases in which the plea in such inferior courts was “not guilty.” In other words, the law does not seem to forbid an appeal to the circuit court by the defendant where his conviction in the court of inferior jurisdiction resulted from a plea of “guilty.” •
Assuming the law to be as stated, and the appellant, by reason of the appeal, to be entitled to a trial de novo of her case in the circuit court, that court should have sustained her motion to withdraw the plea of guilty which had been made in the justice’s court and allowed her to enter the plea of “not guilty;” for her right to enter that plea might have been exercised at any time during her trial in the circuit court and before judgment, even had she first entered in that court a plea of guilty; but in the latter case it would have been necessary to first withdraw the plea of guilty. The right of a-defendant to change his plea as we have indicated as given by section 174, Criminal Code of Practice, which provides: “ At any time before judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” Instead of restricting the right conferred by this section, it seems to have been the policy of this court to enlarge it; for in Mounts v. Commonwealth, supra, it was held that “a plea of guilty may be withdrawn even after .verdict, a new trial being granted for that purpose, if it appear that the defendant was induced to enter the plea by the threats or promises of the court or attorney for the Commonwealth, and thereby overreached or deceived.”
We omit consideration of appellant’s complaint that the plea of guilty entered by her in the justice’s court was made under circumstances of duress, as we think *716she was entitled, independently of that contention, to change her plea in the circuit court. If, however, on the trial that may follow the return of this case to the circuit court, the Commonwealth should introduce as evidence, tending to prove her guilty of the offense charged in the warrant, the plea entered by appellant in the justice’s court, she should be permitted to prove the facts, if any, constituting the alleged duress under which the plea of guilty was obtained from her.
For the reasons indicated, the judgment of the circuit court is reversed and case remanded, that appellant may, as contemplated by her appeal and directed by this opinion, have, a trial in that court under the charge contained in the magistrate’s warrant.