41 Cal. 458 | Cal. | 1871
The Court erred in denying the motion made by the defendant on the 20th February, 1871, to continue the cause for the term. There was a sufficient showing as to the materiality of the absent witnesses, and there was apparently no lack of diligence in the effort to procure their attendance. The Attorney General has failed to point out any particular wherein the affidavit was defective, and I discover none. I think the showing was sufficient, and the motion should have been granted; particularly, as this was the first application for a continuance. B or can it be said that this error of the Court worked no injury to the defendant, inasmuch as he, thereupon, withdrew his plea of “not guilty ” and entered a plea of “guilty of murder in the second degree.” It may be, that finding himself forced into a trial in the absence of his witnesses, he deemed it politic to confess himself guilty of the lesser offense rather than incur the hazard of a conviction for the greater in the absence of his witnesses.
But I think the Court also erred in permitting the plea of “guilty of murder in the second degree ” to be entered, and in refusing to allow it to be afterwards withdrawn, on the facts disclosed in this record. A plea confessing himself to be guilty of crime should not be entered except with the express consent of the defendant, 'given by him personally, in direct terms, in open Court. Bothing should be left to implication, and his confession of guilt should be explicitly made by himself in person in the presence of the Court. Assuming, however, that it sufficiently appears from the record in this case that the plea was entered with the consent of the defendant, given in open Court, he should have - been permitted, under all the circumstances, to withdraw it
Judgment reversed and cause remanded for a new trial, with leave to the defendant to withdraw his plea of “ guilty of murder in the second degree.”
Mr. Justice Wallace did not express an opinion.