THE STATE v. HOWARD E. HARE, Appellant.
56 S. W. (2d) 141
Division Two
December 14, 1932.
No reversible error appearing the judgment is affirmed. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by FITZSIMMONS, C., is adopted as thе opinion of the court. All of the judges concur.
Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.
Defendant married Helen Ebbers at Minneapolis, Minnesota, in 1923. Two children were born of that marriage. Defendant and his said wife lived together three years when they sepаrated and he came to Kansas City, Missouri. In August, 1930, defendant married Martha Schulz. In February, 1931, he obtained a divorce from his wife Helen. On December 19, 1931, he married Esther Lou Foss. The foregoing facts were furnished by defendant to the assistant prosecuting attorney before whom he was taken when arrested and were by that officer reduced to writing and signed by defendant.
The informations to which defendant рleaded guilty were bottomed upon
Defendant was arrested about midnight of December 30, 1931, at whose instance is not shown but probably that of Gus Foss, a brother of Esther Foss Hare who had that evening become aware of defendant‘s tangled matrimonial affairs. He was kept in custody by the police without opportunity to consult counsel, until about 9 or 9:30 A. M., December 31, when he was taken to the office of T. A. J. Mastin, assistant prosecuting attorney, where he was questioned by that officer and his written statement above referred to was obtained. The statement was as follows:
“My name is Howard Hare. I am 29 years of age and the first time I was married was in 1923 to a girl by the name of Helen Ebbers. I married her in Minneapolis. I lived with her three yеars and have two children by her. They are now living in Quincy, Illinois, with her father. The last time I saw her was in May in Quincy. I have been divorced from my first wife since February, 1931. I got the divorce under my right name and an attorney by the name of Sprinkle obtained my divorce for me.
“I then married a girl by the name of Martha Schulz in August, 1930. This was before I was divorced from my first wife. I knew Martha Schulz about two years before I married her. She did not know anything about my having another wife. I then married Esther Foss on December 19th, 1931, at Merriam, Kansas. I had a wife at that time. When I married Esther Foss I only had one wife. I married Martha Schulz in Kansas City, Kansas and was married by a Lutheran Minister by the name of Pooker.
“I was married to Esther Foss in Merriam, Kansas by a Probate Judge.”
He also signed the following:
“Waiver. I, the undersigned, hereby waive my right to a preliminary hearing before a Justice of the Peace and right to consultation with friends and attorney, but desire to be filed on direct in the criminal court where I will enter a plea of guilty to the charges filed against me. (Signed) Howard Hare.”
Armed with said written statement and waiver Mr. Mastin took defendant from his office to the courtroom, filed the informations which he had prepared while defendant was in his office, informed the court that defendant desired to plead guilty and the pleas were entered of record. Mr. Mastin recommended and the court thereupon assessed the maximum punishment in each case and sentenced defendant accordingly in both cases, specifically ordering that the sentences should run consecutively. Thus by judgment of the court as
Defendant‘s motions for new trial and to set aside the judgments and permit withdrawal of the pleas of guilty were filed January 2, 1931. On January 7 the court heard evidence upon the motions to vacate the judgments and permit withdrawal of the pleas. The motions and the evidence thereon are identical. There was but one hearing, the two cases being proceeded with togethеr as they had been theretofore.
In defendant‘s said motions he stated in substance the facts and dates of his marriages and of his divorce from his wife Helen; that he was arrested about midnight, December 30, held in custody by the police until the next morning when he was taken before Mr. Mastin to whom he related the facts; that Mr. Mastin informed him that under the statute he was guilty of bigamy in his marriage to Esther Lou Foss as wеll as in that to Martha Schulz and advised him to plead guilty, and in that connection told him his “chances would be better with the court” by pleading guilty than if he should be tried before a jury; that, believing and relying upon such information and advice he pleaded guilty to both informations, whereupon the court asked Mr. Mastin his recommendation as to the punishment and the latter advised the court that the prosecuting attorney‘s office recommended a sentence of five years’ imprisonment in each case; that he (defendant) did not have the benefit of counsel and was not advised that he was entitled thereto, and was given no opportunity to consult with an attorney or with a friend; that he pleaded guilty through mistake and because of the advice of the assistant prosecuting аttorney and his belief that said attorney had correctly advised him as to the law and was led by said attorney to believe that he would receive lighter sentences if he pleaded guilty; that he was not guilty and had a “valid, legal and meritorious defense” to the charges (without stating it); that the court entered the judgments without being fully informed as to the facts and the law and that the sentences were еxcessive and not warranted by the law or the facts.
Defendant‘s testimony at the hearing tended to sustain the allegations of his motions except that he did not testify to any facts showing that he was not legally guilty of bigamy in marrying Martha Schulz and thereafter cohabiting in this State with her, as he admitted having done. He further testified that when he married Martha Schulz he had filed suit for divorce from his wife Helen but the suit had not been tried; that he and Martha had separated (it is not shown why) in March, 1931, following his divorce in February. The record of the divorce was introduced, showing a divorce granted to defendant from Helen Hare, February 5, 1931. He further testified in substance that when he signed the waiver of a preliminary hearing
The testimony of Esther Foss Hare tended to corroborate that of defendant in most particulars relative to the latter‘s arrest and the events and circumstances following it.
Mr. Mastin testified in substance that he informed defendant he was entitled to a preliminary hearing and the right to consult with friends and attorney; that defendant signed the waiver voluntarily and understandingly; that he did not tell defendant, as the latter had testified, that if he said nothing antagonistic to the court his chances would be better and he would receive more consideration by pleading guilty; that in the courtroom both defendant‘s written statement and waiver were read to the court and he (Mastin) stated to the court in defendant‘s presence “that the defendant had been made aware of all his rights and privileges . . . relative to a preliminary hearing and the consultation with friends and attorneys, and as evidence of his desires and wishes in the matter had signed this statement (waiver);” that defendant was then asked if the statement just made to the court (by Mr. Mastin) was the truth, to which he replied: “Yes;” that he (Mr. Mastin) then read the “charges” (informations?) to defendant and asked him whether he wanted tо plead guilty or not guilty and defendant said he wanted to plead guilty.
It appears fairly clear from the testimony of Mr. Mastin and from statements made from the bench in the course of the hearing on the motion that the judge did not himself ask defendant when the pleas of guilty were entered whether he wanted to plead guilty or any questions at all, but that whatever questions were asked defendant wеre asked by Mr. Mastin in the presence and hearing of the court. Defendant was not asked to make and did not make any statement except to answer Mr. Mastin‘s questions as above shown. The court, however, indicated that Mr. Mastin read to the court defendant‘s written statement and asked defendant if it was true and defendant said it was. Mr. Mastin testified that his recommendation as to punishment when thе pleas were entered had been and still was that defendant “should get ten years, five years on each charge.” He did not deny having informed defendant that under the law he was guilty on both charges.
Immediately upon the conclusion of the evidence the court over-
I. It is within the judicial discretion of the trial court to permit a plea of guilty to be withdrawn. The action of the court in refusing to permit withdrawal of such plea is reviewable. [State v. Stephens, 71 Mo. 535; State v. Kring, 71 Mo. 551; State v. Dale, 282 Mo. 663, 222 S. W. 763.] The question here is, did the court abuse its discretion in refusing to set aside the judgments and permit withdrawal of the pleas of guilty? As to case No. 31789, in which defendant was charged with bigamy in marrying and thereafter cohabiting in this State with Esther Lou Foss, the question clearly must be answered in the affirmative. That marriage was valid and defendant committed no offense in entering into it. His first marriagе, that to Helen Ebbers, had been dissolved by divorce. The second, that to Martha Schulz, was void and constituted no legal obstacle to his marriage with Miss Foss. [
The Wilson case is in point and in connection with
II. A morе difficult problem is presented in case No. 31790, in which defendant is charged with bigamy in his marriage and cohabitation with Martha Schulz. According to his written statement which was before the court when his plea of guilty was entered and as well his testimony at the hearing of his motion to withdraw the
In fixing the punishment and refusing to permit withdrawal of the pleas of guilty the court, no doubt, inadvertently had in mind that defendant was guilty of two similar crimes. Had defendant been charged with but the one offense of which he was guilty, with no prior charge of law violation, bad character or other circumstances of aggravation appearing (and no such circumstances were suggested), it seems to us hardly likely that he would have been given the maximum sentence of five yeаrs imprisonment in the penitentiary for an offense for which the statute permits a punishment as low as a $500 fine.
The learned Assistant Attorney-General who briefed the case here, himself a former circuit judge, conceding that case No. 31789 should be reversed, also candidly suggests the reversal and remanding of case No. 31790. He says in his brief:
“We are aware that this court holds that punishment on pleas of guilty rests entirely in the trial court‘s sound discretion. [State v. Sublett, 318 Mo. 1142.] But the question arises here whether his discretion would be soundly exercised when he was misled as to the number of legal offenses committed and evidently aroused thereby to the limit of giving two maximum sentences of five years each and fixing the appeal bonds at $10,000 in each case, so that this court had to be called upon to reducе the same to a far less and more reasonable amount.”
He further pertinently suggests consideration of the question “whether the defendant may not be fairly entitled to a reversal and remand of the case in order that the trial court may have an opportunity to consider this case without prejudice as a single legal offense, with whatever pertinent matters of mitigation or aggravation that may be brought to its attention, instead of passing on it as one of two similar legal offenses, as was erroneously done;” adding that if defendant should ask a jury trial the evidence is available to convict him, and “whatever the result of such reversal and remand, he could not then as now plausibly contend that the sentence received by him was the result of extraneous legal error, prejudicially though unintentionally, imposed on him by our courts in the joint hearing of the cases.”
In the circumstances of this case the statement of this court in State v. Stephens, 71 Mo. l. c. 536, seems peculiarly appropriate, viz.:
“We feel constrained to say that it would better have comported with the proper exercise of a sound judicial discretion, had the . . . judge permitted the withdrawal of the plea of guilty, and the entry, in its stead, of the usual plea. The law is not composed of a series of snares and pitfalls for the unwary, neither does it favor what Judge Bliss terms ‘snap judgments.‘”
PER CURIAM:—The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All of the judges concur.