89 Ky. 274 | Ky. Ct. App. | 1889
delivered the opinion of the court.
It appears from the bill of exceptions that when the case was called for trial the attorney for the Common
On the day following the verdict the defendant entered a motion to permit him to withdraw the plea of guilty and enter a plea of not guilty, accompanying which motion was a statement to the effect that he was induced to enter the plea of guilty, believing the jury would be merciful to him and spare his life; but that the attorney for the Commonwealth introduced as a witness the mother of the person killed, and the character and manner of her testimony was such as calcu-lated to arouse the passions and prejudices of the jury, and to induce them to inflict the severest' penalty. He -further stated that he believed, if permitted to withdraw the plea of guilty, and have a full and fair trial
Section 174, Criminal Code, is as follows: “At any ■time before judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”
Though it is provided in that section the plea may, with permission of the court, be withdrawn at any time before judgment, obviously the intended efEect of such proceeding, if occurring after the verdict of the jury has been rendered, is to retry the case, and, consequently, to authorize it to be then done there must exist such reasons as would be sufficient to justify the granting of a new trial.
A plea of guilty is inevitably followed by conviction of the offense charged in the indictment, and the only ■question left open in such case is the nature and extent of punishment to be inflicted, which is still within the legal discretion of the jury. Nevertheless, if the court or attorney for the Commonwealth, by threats or promises, induces a defendant in a criminal prosecution to enter a plea of guilty, and he is thereby overreached or deceived, even in respect to the extent of punishment, permission should be given to him to withdraw the plea, and substitute a plea of not guilty, although a verdict has been rendered, a new trial being granted for that purpose.
We do not think the Commonwealth can, by the voluntary act of a defendant entering a plea of guilty, be deprived of the right to introduce evidence bearing upon the question of punishment when the offense charged is of different degrees, or is punishable, in the discretion of the jury, in different degrees of severity, unless such plea has been entered upon the faith of a promise or assurance by the court or attorney for the Commonwealth the 'minimum punishment will be inflicted.
In this case no such promise or assurance was given; on the contrary, it appears the attorney for the Commonwealth gave notice that, notwithstanding the plea of guilty, he would insist on the introduction of the witness who did testify; and although the record shows the defendant objected to the testimony of that witness when offered, no motion was then made for permission to withdraw the plea of guilty, and substitute a plea of not guilty.
It seems to us that as the defendant, of his own volition, took the risk of the jury inflicting the penalty of death for the crime of murder, of which he pleaded