The defendants were indicted in two counts,* first, for wilfully interrupting and disturbing a meeting of people held for the purpose of public worship in “Bradley’s Chapel Church,” and, second, for being intoxicated and conducting themselves in a rude and disorderly manner at Bradley’s Chapel, it being a place where people are accustomed to assemble for the purpose of divine worship and while they were so assembled for such purpose. The bill sufficiently charges the commission of a criminal offense. The defendants entered a plea of guilty. The case then states that the Court heard the evidence, and it appearing that the disturbance occurred on a certain day at a Sunday-school held at Bradley’s Chapel, which was used for preaching, but there was no preaching on that day,' and the Court being of the *561 opinion that there was,a fatal variance between the allegations and the proof, ordered the plea of “guilty” to be stricken out and a verdict of “not guilty” to be entered,' which was accordingly done, and the defendant discharged. The State excepted and appealed.
A confession of the defendant may be either express or implied. An express confession is where he pleads guilty and thus directly, and in the face of the Court, admits, the truth of the accusation. This is called a plea of guilty and is equivalent to a conviction. 1 Chitty’s Of. Law, 429. The Court then has nothing to do but to award judgment as upon a verdict of guilty (4 Blackstone, 329), but, of course, may hear evidence for the purpose of enabling it to determine the measure of punishment. Claries Or. Procedure, p. 372. In
Green v.
Com., 12 Allen (Mass.), 172, the Court said, when referring to the subject: “If a jury would be Avárranted in finding á person guilty of a particular offense charged in an indictment, the party accused may confess such offense by a. plea of guilty; in other words, a plea of guilty may be supported whenever a verdict of a jury finding a party guilty of a crime would be held valid. A conviction of crime may be had in tAvo ways; either by the verdict of a jury, or by the confession of the offense by the party charged by a plea of guilty, Sidiich is the highest conviction.’ The effect of a confession is to supply the Avant of evidence.' When, therefore, a party pleads guilty to an indictment, he confesses and convicts himself of all that is duly charged against him in that indictment,” citing 2 Hawkins P. C., ch. 31; ch. 433, see. 120; 4 Blk. Com., 362. The defendant Avill generally, but not necessarily, be allowed to retract his plea of guilty and plead not guilty. A defendant may also Avithdraw his plea, of not guilty, even after it is recorded, and plead guilty. The motion to retract in either case is addressed to the sound discretion of the Court and a retraction is not a matter of right.
*562
Clark’s Cr. Pro., p. 373;
Mastronado v. State,
Onr case is stronger than this one, for here no jury had been empaneled, and the verdict of not gniltv was not in any sense the verdict of a jury, but the verdict of the Judge, which is a legal anomaly. It is well to add that a Judge cannot compel a defendant against his will,to plead not guilty and submit to a trial, for undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty instead of denying the charge, yet, in proportion to the gravity of the offense, the Court should exercise caution in receiving this plea and should see that he is properly advised as to the nature of his act and its consequences. This is. a matter which is left to the good judgment and discretion of the Court, which should be exercised so as to protect a defendant from an improvident plea and.to prevent injustice. 1 Bishop’s New Cr. Procedure, sec. 195.
We have regarded the order of the Court, by which the plea of guilty was stricken out., as made at the defendant’s request, or at least with his consent, as he accepted the benefit of what was done. The indictment alleges a criminal offense, and as the Judge has stricken out the plea of guilty and had no power to enter a verdict of not guilty, the case would stand as if there had been no pica, provided the invalidity of the Court’s action is shown in the proper way. We will not suggest the procedure, as that matter is not now before us.
The doctrine of variance did not apply to this case,-as it relates only to evidence introduced to establish guilt, but not to any received after conviction, whether by verdict of a jury or confession of guilt in open court. The guilt is then legally ascertained and no further evidence of it is required.
State v.
Moore,
*564
We think that a person who wilfully disturbs a Sunday-'scbool was indictable at common law and our statutes are amply sufficient to cover sticb a case. 2 McLain Cr. Law, 1022;
State v. Jasper, supra;
2 Wharton’s Cr. Law. (9 Ed.), sec. 1556a and notes. Revisal, sec. 3704 and 3706;
Martin v. State,
The real difficulty presented in the case here is whether the State had the right to appeal. AVe think not. The statute now regulates this matter and it provides: “An appeal to the Supreme Court may be taken by the State in the following cases and no other. Where judgment has been given for the defendant: 1. Upon a special verdict. 2. Upon a demurrer. 3. Upon a motion to quash. 4. Upon arrest of judgment.” Revisal, sec. 3276.
State v. Savery,
Appeal dismissed.