5 Wyo. 107 | Wyo. | 1894
John C. Conway, the plaintiff in error, was indicted for the crime of murder in the first degree at the August, A. D. 1891, term of the district court for Hatron-a County. He pleaded not guilty to the indictment and trial was begun on the first day of September, A. D. 1891. On the fourth day of that month, and during the trial, the record of -the district court shows that the defendant withdrew his plea of not ■guilty and pleaded guilty of the crime of murder in the second degree; that thereupon he was ordered into the custody of the sheriff to await sentence and the jury was discharged from any further consideration of the case. Ho objection appears to have been made either by defendant or his counsel to the withdrawal of the'initial plea or to the entry of the substituted plea, or to the discharge of the jury, but on the 8th day of September, 1891, some four days later, the de■fendant filed a motion -accompanied by the affidavits of himself, his attorneys and another to amend and correct the
"A. C. Campbell, an attorney heretofore directed- by the ."court to sit with and counsel the attorneys for 'the defendant in the trial of this cause, at this time states to the "Court that the defendant asks leave to withdraw his plea of "‘not guilty’ heretofore entered by him in this cause, and "will enter a plea of guilty of murder in the second degree. "The defendant in his own proper person speaks not. And "the court directs that the defendant John C. Conway is "permitted to withdraw his plea of not guilty heretofore “entered by him in this case, and is permitted to enter a "plea of guilty of murder in the second degree. The defendant John C. Conway in his own proper person speaks "not.” The district court ordered the affidavits detached from the motion and stricken from the files and refused to-.consider the same upon the ground that, taken separately or as a whole, they undertook to show to the Court a condition of affairs that' did not exist as to the proceedings that were had at the time when the plea of guilty was entered and the jury discharged, and the motion to amend the record was overruled. On the same day a motion was made to arrest the judgment, on the following grounds, because (1) the court had no jurisdiction to pass sentence upon the defendant, (2) the defendant was'not properly before the court, (3)' no indictment such as is required by law had been filed in said cause, and .(4) the defendant had not been convicted of any crime. This motion was overruled by the court and sentence and judgment was pronounced against the defendant, and his punishment fixed at twenty-five years’ confinement at hard labor in the State penitentiary. Two days later, a motion was made to correct the record as to the proceedings of the court in pronouncing sentence, in order to show that the defendant when asked if he had anything to say why judgment should not be pronounced against him, said: "If it please your honor, I did not plead guilty.” This motion was*115 accompanied by an affidavit, which was also stricken from the files as showing a state of facts that did not exist.
Thereafter, and on the same day, another motion was made to amend the record, which was in effect the same as the motion first made, except that it was submitted without affidavits, and this motion the court also overruled, giving as its reasons for its refusal to amend the record, (1) the application was made after the sentence' had been passed upon the defendant and ‘the case finally disposed and (2) that the record as it stood was practically sufficient, complete and true in all respects, and required no change. The facts and circumstances attending the withdrawal of the plea of not guilty and subsequent plea of guilty of murder in the second degree are then minutely set forth in the order- overruling this last motion, and were entered at large upon the journal of the court by its order. Briefly stated, they are that during the trial of the cause, the leading attorney for the defense suddenly left the county without notice and was found to have abandoned the cause. At the urgent request of the other attorneys for the defendant, the court appointed an attorney to assist them, who acted with them until sentence was pronounced. After the prosecution had introduced its testimony in chief and rested, counsel for the defendant requested time for consultation, which was granted, and the judge of the court was informed that a conference between opposing counsel was called to act upon a proposition of the defendant to plead guilty to murder in the second degree. The attorney appointed by the court to assist counsel for defendant informed the court that there was practically no testimony on behalf of the defendant which would affect the evidence for the prosecution and that the defendant ought to plead guilty to murder in the second degree and would do so. The judge consented that this plea might be entered at the opening of the court on the following morning, as the evidence in the opinion of the judge was sufficient to warrant a conviction of such a crime, and on the following day, in the presence of the court, the defendant and his counsel, the attorney under special appointment of the court
Proceedings by mandamus have been instituted in this court ancillary to the proceedings in error to bring into the record the affidavits filed in support of the motions to amend the record and on the motion in arrest of judgment, these having been stricken • from the files and the judge having refused to incorporate them in a bill of exceptions. These affidavits are brought to our attention in the petition for the writ of mandamus, where they are set out at length and are verified by the affidavit of the attorney for plaintiff in error.
An answer was filed' by the judge to the petition for the writ alleging that the bill of exceptions signed' by him and made a part of the record in the proceedings in’error is a full, true and complete bill and that he refused to allow and sign other bills of exceptions presented to him because they were incorrect. To this answer of the judge a demurrer and a reply was'filed by the relator and plaintiff in error. The proceedings in mandamus and in error were argued together and submitted together for our consideration.
1. If the affidavits rejected by the court below had been incorporated in the record, the result would have been the same, as .the judge of the trial court insists that his recollection of the events occurring in his presence as a court, but a few days prior to the filing of the motion to amend the
As the court below decided the various motions offered to amend- its record upon its own immediate knowledge and positive recent recollection, the right result was reached, even though it discarded the affidavits in hostility to its recollection, as they or either of them could not be allowed to impeach the recollection of the judge as to matters occurring in his court within his personal knowledge and observation,
2. But taking the order of the court reciting the facts as they occur, which is made a part of the record by order of the judge, it is insisted that this recital shows that there was no personal plea of guilty, that the judgment and sentence of the court was a nullity and that the defendant having been once in jeopardy, must' be discharged by this court. The record discloses that no motion for a new trial was made nor anything done -by counsel to waive any right issuing from the situation in which the defendant claims he was put.
According to.the statement of the judge, the defendant inclined or “nodded” his head in response to the question put by the court asking if he desired to- withdraw his plea of not guilty and plead guilty to murder in the second degree. The affidavits presented to the court state that defendant made no personal plea and was asked nothing by the court except as to his age, to which he replied “twenty-nine, going on thirty.” They do not state that defendant misunderstood the proceedings of the court or was misled by anything that was said or done by his counsel or the court, neither is there any intimation that counsel had no authority to act for defendant. It is certain that no objection was interposed to the action of the court in accepting the plea and discharging the jury. Our statute makes provision for a personal plea upon arraignment unless the defendant stands mute or refuses to plead, when a plea of not guilty is entered for him, but unlike the statutes of some of’the States, there is no provision for the withdrawal of the plea once made and the substitution of another. But this
The case at bar is different, as the evidence of the prosecution had been heard, the evidence was sufficient to warrant the conviction of the lesser offense, and the plea seems to have been made only after.a protracted consultation between
Under the circumstances of the case before us, even taking into consideration the eliminated affidavits, it does not sufficiently appear that the defendant misunderstood the proceedings of the court or- of the attorney who was appointed by the court to act with others of his selection at their request, and who acted for him without objection on his part, ■or that he was misled or that an attempt was made by any one to compel him to plead guilty. His affirmative assent to the action of the attorney, although made by a sign, we think was sufficient and operated as a voluntary plea, particularly as he made no objection to the action of the attorney or to the proceedings of the court, and as it is not made to appear that he did not understand the proceedings or the effect of his plea. The punishment of imprisonment for twenty-five years imposed upon him was not the full extent of the law, the minimum of the punishment being twenty years, and the court was clothed with the power to inflict a life sentence for the crime of murder in the second degree. The statement of the judge is to the effect that the evidence sufficiently warranted a conviction of such an offense. No complaint is made as to the quantum of the punishment, and it is not contended that the defendant was entrapped, inveigled or induced into making the plea of consenting to the proceedings. At the common law a personal plea was necessary on arraignment and it must appear on the record, but under the codes of criminal procedure where on appeal or review of the action of the trial court, errors not prejudicial and not affecting the substantial rights of the defendant are disregarded, it has been held that a trial without the record of
The doctrine of waiver in criminal cases has been carried to the extreme by some of the courts, and the supreme court of errors in Connecticut plainly says: “The prisoner or his “counsel for him, may waive any objection in a case not “capital.” State v. Tuller, 34 Conn., 295. By consent of parties, a jury, although sworn and having heard some of the evidence in a capital ease, may be discharged without a verdict, and a mistrial declared. Spencer v. State, 15 Georgia, 362. A defendant may waive a discontinuance of his case by operation of law, if he continues to appear after such a discontinuance operates and suffers the suit to progress without objection on his part. Ex parte Hall, 47 Ala., 675. If a plea in bar set forth that the cause was dismissed and the jury discharged by the court upon the motion of the respondent, the judgment of conviction upon the second trial will be affirmed. People v. White, 68 Michigan, 648; N. W., 34. Com. v. Sholes, 13 Allen, 554.
3. The only matter which has not been passed upon
4. The sentence was pronounced and judgment rendered in the case by the district court of Natrona County on the 8th day of September, 1891, and the last proceedings of the court on the motion to amend the record were had on the 10th day of that month. At the time of the rendition of the judgment, the defendant was allowed by the court time to the extent of thirty days from that date in which to prepare, file and present to the judge in vacation his bill of exceptions.
No bill was allowed within this time and no extension of time for filing or presenting th'e bill was made until the 9th day of September, 1892, during the August term of that year of the district court, more than one year after the rendition of the judgment. The statute regulating the allowance of a writ of error in a criminal case is as follows: “In all criminal cases, after final judgment, and within one year after “the rendition of the judgment, writs of error may, on good “cause shown, be allowed on the application of the defend-“amt upon his petition verified by affidavit, setting forth the “grounds of error clearly and succinctly of which he complains* together with a transcript of the record of the trial “court, by the supreme court or any judge thereof, in the “recess or vacation of said court/’ Rev. Stat., Sec. 3354. Application was made for the alternative writ of mandamus in this cause to the court August 29, 1893, and on that day the petition in error with the transcript of the record was filed in the office of the clerk of this court and the alternative writ allowed. On the first day of September, 1893, application was made for the writ of error to the chief justice of this court and was allowed by him on that day.
It has been the practice of the justices of this court to allow writs of error pro forma,, but if the writ should be im
We have reviewed the matters assigned as errors in this opinion, and it follows that we should have affirmed the
The peremptory writ of mandamus is denied, and the petition therefor and for the writ of error are dismissed.
who was one of the members of this court when this cause was submitted, was disqualified by reason of being of counsel in the district court, and Hon. Jesse Knight, Judge of the District Court for the 'Third Judicial District, was called in by the remaining justices, under the constitutional provision, and sat .in the hearing and determination of this cause.