State v. HamiltonState v. Hamilton
The question of ratification may be and often is one of fact, to be determined by the triers of the facts. Here we have a letter offered by plaintiff, admittedly written by Perles & Stone, from whom plaintiff derives its claim. It is uncontradicted and unexplained and speaks for itself. We think it indisputably speaks the intent to claim the commission agreed upon by defendant and Siegel, as specified in the commission contract.
The order of the circuit court awarding a new trial is affirmed and the cause is remanded. Westhues and Bohling, CC., concur.
PER CURIAM: - The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.
BOHLING, C.—Roy E. Hamilton and Dave Eddy, alias Eddie Gayman, were charged with the murder, in the first degree, of Arthur Cashion and pleaded guilty. Their punishment was assessed at death. Thereafter they filed a motion to set aside the judgment and to withdraw said pleas of guilty, and appeal from an adverse ruling thereon.
Defendants contend that, on a trial on the merits, they would be entitled to an instruction on second degree murder and to interpose the plea of self-defense; and, therefore, their motion should have been sustained. These contentions are based on the theory that defendants had no intention to kill at the inception of the attempted robbery; and that when deceased showed resistance they abandoned the attempt to rob and shot deceased in self-defense. This necessitates a statement of the facts attending the homicide.
The following facts were adduced from defendants at the hearing held on their motion: The defendants had been drinking and drove their automobile up to a service station operated by Arthur Cashion, deceased, about eight P. M., December 24, 1933, with the purpose and intention to rob the deceased, and ordered five gallons of gasoline. Each had a gun. Defendants entered the service station while Cashion was servicing their car. When Cashion came in he was between the defendants and the door to the service station. Defendant Eddy drew his pistol and ordered Cashion to throw up his hands. Events followed in rapid sequence. Cashion immediately secured a
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Nor does the evidence justify the submission of the issue of self-defense. There was no abandonment, request for peace, or surrender communicated to deceased. Defendants’ efforts were directed toward the accomplishment of the robbery or their escape without apprehension. They were admitted felons, engaged in attempted robbery by means of dangerous and deadly weapons, and brought on the combat in an effort to accomplish the crime. Deceased had the legal right to defend himself and his place of business against defendants’ felonious acts. [
The defendants contend that their pleas of guilty were made under duress; that is, under the fear and excitement of mob vio-
While a plea of guilty is a confession in open court, to be received with caution and only if voluntarily and freely made [State v. Cochran, 332 Mo. 742, 745(2), 60 S. W. (2d) 1, 2(5-8)]; when accepted and entered by the court, it ” ‘is a conviction of the highest order, the effect of which is to authorize the imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently charged in the indictment or information.’ ” [Dusenberg v. Rudolph, 325 Mo. 881, 886, 30 S. W. (2d) 94, 96, quoting 8 R. C. L., p. 116, sec. 85.] Granting permission to a defendant to withdraw a plea of guilty accepted by the court rests within the sound discretion of the trial court, its finding being entitled to due deference upon review. [State v. Kellar, 332 Mo. 62, 69, 55 S. W. (2d) 969, 972(2), to which reference is made for an exhaustive review of the Missouri case law.]
We are in accord with the rulings made in the cases cited by defendants to the effect that a defendant should be permitted to withdraw a plea of guilty entered under fear of mob violence. In Sanders v. State, 85 Ind. 318, 321, the evidence showed the presence of a large number of angry men, uttering threats of violence and apparently determined to seize and hang the accused unless punishment be immediately imposed; that the judge of the court was greatly excited and stated he had not drawn an easy breath until the train taking accused away was in motion; that the sheriff and other officials stated there was great and imminent danger of mob violence; and that the plea of guilty was reluctantly acquiesced in by accused after urgent insistence by his counsel. In Little v. Commonwealth, 142 Ky. 92, 94, the defendant was indicted, convicted on his plea of guilty, and hurried away for fear a mob might hang him, all within a few hours. The order of the trial court in part read: “The defendant being convicted of murder and his punishment fixed at death, and it appearing to the satisfaction of the court that there is danger of mob violence to said prisoner if he should be kept in jail at Jackson; . . .” and the court authorized the summoning of a sufficient guard to protect the prisoner and convey him to the jail at Lexington. There was also uncontradicted evidence that the accused killed in self-defense; and that he had been advised to plead guilty before the train left for Lexington as there had been talk of mob violence.
On examination of the Missouri cases involving confessions made under claimed fear of mob violence, we find: In State v. Patterson, 73 Mo. 695, 703, there were threats of a mob. Several men came to the room where the prisoner was being guarded at night and knocked at the door. The guards said they would shoot the first
One of defendant‘s witnesses testified there was some talk of the possibility of mob violence on the streets, and he thought he heard it mentioned a few times around the courthouse and thought there was some talk about a rope or two. Another witness for defendants testified he was around the courtroom all day and in the lobby but did not hear any discussion of mob violence.
Defendant Eddy, who was forty-two years of age, testified a post office inspector stated to him within a day or two after his arrest on January 3rd and while he was at Poplar Bluff that “feeling was pretty high against us over here,” and advised not bringing defendant back immediately on that account (defendant Hamilton was then confined in the New Madrid jail); that the prosecuting attorney, about a week later, stated “that feeling was pretty high over here;” and that the officers present at the time of his arrest “said they ought to hang us right there.” On January 4th, at Poplar Bluff, defendant Eddy made a sworn signed confession stating it
Defendant Hamilton, who was twenty-five years of age, testified: “Q. Now, after you were arrested did you get information that there was threatening of mob violence? A. Yes, that was the talk, talked quite a lot around the jail. Q. You heard they were threatening to mob you? A. Yes. Q. What effect did that have on you? A. Well, I figured to plead guilty and get off the easiest and best way. Q. To avoid mob violence? A. Yes. Q. How frequently did you hear threats of mob violence had been made before you entered your plea of guilty? A. Well, I couldn‘t say exactly, I don‘t just exactly remember. Q. Do you recall who it was that reported they were threatening mob violence? A. No, I couldn‘t exactly know. Q. Did you ever hear any officers talk about threatening mob violence? A. Heard it mentioned about mobs between themselves, and they left the impression there would be mob violence, and Mr. Harris had told me he wouldn‘t advise me wrong, and talked to me like he believed that it would be the best way, in fact, the only way out of it.” He testified that at the time he made his signed confession on January 3rd no one threatened him or made any promises to him, but that he had the impression “we wouldn‘t get the rope and that we wouldn‘t be lynched;” that there was no threat made if he wouldn‘t make the statement. His signed confession, made on January 3rd, the day of his arrest, states that it was voluntarily made, knowing it to be true, without threats or duress, or promise of any character whatsoever being made to him, and knowing it might be used against him in court as evidence; and again that it was made of his free will and accord, without fear or intimidation, or promise of reward. He also testified on cross-examination that he made the signed confession voluntarily “under the circumstances;” that nobody threatened him if he did not make the statement; and that he entered his plea of guilty before the court voluntarily “under the circumstances.”
At the time of the preliminary the prosecuting attorney advised the defendants that the circuit court would appoint counsel for them, and immediately after the preliminary advised defendant Eddy he was going to ask the death penalty whether defendants stood trial or entered a plea, informing him again the court would appoint counsel, and that said defendant stated he did not want counsel.
Each defendant had been convicted three times for the violation of State or Federal laws and had served time for each offense. Their testimony indicates they comprehended the gravity of the offense with which they were charged and the severity of the punishment a conviction would impose.
The record before us discloses mature deliberation on the part of the court. In the cases relied on by defendants the trial court realized the tenseness of the situation at the time the pleas were accepted by the court. No such circumstances exist in the instant case. The homicide occurred December 24, 1933. Defendants were arrested January 3, 1934. Defendant Hamilton was immediately placed in the New Madrid jail and defendant Eddy, who was suffering from a wound, after a stay at Poplar Bluff for approximately one week, was brought to New Madrid. Their pleas were accepted on January 15. Sentence and judgment were not entered until January 20. Accepting defendant‘s testimony of statements made to them, the only testimony of any definite statements to either is that of defendant Eddy to the effect that at the time of the arrest the officers stated they ought to hang defendants right there, and, later, that feeling at New Madrid was pretty high against them, the last of which was made five or six days prior to their pleas of guilty. Any fear aroused by the statement attributed to the officers at the time of the arrest to the effect that they ought to hang defendants must have ended when it was apparent no such action was being taken—certainly when the defendants were safely confined in jail—as all danger of carrying out such threat had ceased to exist. Nor do we consider the statements to the effect that feeling at New Madrid was pretty high against defendants to be of such a nature as to exert a continuing influence upon them forcing their pleas of guilty five or more days thereafter. [State v. Patterson, supra.] The repeated suggestions, amounting, in fact, to an insistence, that defendants accept the aid of counsel must have afforded defendants some assurance that their legal rights were being respected and would be protected. The trial court must have entertained no impressions of danger from mob violence at the time the pleas were accepted. Its repeated requests that defendants permit the appointment of counsel, and its deferring judgment for several days negatives the existence of danger from a mob. It is common knowledge that the life of a mob is short; that its action is taken at an early opportunity while the public sentiment aroused by the offense is crystalized for action and before it has had time to cool. The de-
The character of each defendant was admittedly bad. Each was intensely interested in having the judgment set aside. They, no doubt, were disappointed with the sentence imposed. Had their contention that mob violence was threatened been sustainable, difficulty should not have been experienced in proving some overt act
It was not incumbent upon the court, under
After a painstaking study of the showing made upon defendants’ motion with a view of affording defendants every advantage to which they lawfully might be entitled, we are of the opinion that, under the law of the case, the trial court was within the rightful exercise of its discretion and is not to be convicted of error in overruling said motion.
We find no error in the record proper.
The judgment of the trial court is affirmed. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
Date of execution set for August 16, 1935.