*1 COURT MISSOURI, OP Jonagan. State V. appellant testimony, up- offered no bnt relied aon demurrer to the which the evidence, State’s jury, overruled. instructions, The testimony under the court’s deemed the sufficient the verdict. to sustain upon hearing The trial of the motion for court, new We not do trial, did disturb the same. will appellant prejudicial In the so. absence error to the judgment All be affirmed. ordered. will It is so concur. Appellant.
THE STATE v. CLYDE JONAGAN, Two, 22, Division December 1925.
1. PAROLE: Power to Grant. Act Since the enactment of the 1921, 1921,page 545, creating paroles Laws a board of for Buchanan County, attorney prosecuting trying neither the de- nor the court felony legal right fendant has a him to enter or agreement pleads paroled. an into if he that he will be 2. PLEA OF GUILTY: Withdrawal: New Trial: Promise of Parole. If defendant was in wise no misled or misinformed prosecuting attorney сoncerning right parole, or to a he is not entitled, judgment, after sentence and to withdraw his by jury. showing and have a trial is Where there no that attorney agreement entered into attorney guilty, or his that if he would enter a in- plea, paroled, him if would enter such he formed would be him, prosecuting attorney misled and neither or otherwise nor that his
the court knew own had informed him pleaded guilty paroled, entitled, upon if hе he would be he is not paroles grant the failure of the board of him a have aside, set withdraw his enter a jury. guilty and have a trial before a of not Juris-Cyc. Corpus Law, J., 730, p. References: Criminal 16 C. Section p.6; n. 14 New. n. Appeal from Buchanan Circuit Court.—Hon. Uts, W. H.
Judge. TERM, OCTOBER
Affirmed. appellant. Lockwood M.
Bart *2 refusing (1) admit in evi- court erred to The representations made to de- dence statements plea. induced the 8 R. C. counsel which fendant Stephens, par. p. 16 C. J. 115; 535; 71 Mo. L. Stаte v. 83, par. 86, 99; v. State, Ind. «State Conover v. 396, 728; refusing (2) court erred in Mont. 470. The Nicholas, 46 motion aside to to set sustain appeared clearly misled defendant was
when that the it plea. by promise enter and induced Kring, Stephens, 71 Mo. 535; 71 v. State Mo. State v. Meyer, Mo. Dale, 282 765; 222 W. State '551; State v. S. v. Meyer, 397, 730; 16 C. sec. 8 102; v. 293 Mo. J. 663; State R. 77. 112, C. L. sec. Attorney-General, respondent; Otto,
Robert W. C. E. counsel. Curtis refusing
(1) no error The court committed plea. defendant’s motion to withdraw sustain Where voluntarily enters a without defendant any misrepresentations being made to him an officer plea. authority he not to withdraw State is entitled Bayaud, v. 23 98 Mo. United States Richardson, 564; v. People Maurequez, 206 v. 63; Pac. State 721; Fed. v. (2) 254 487. 566; State, Kan. Miller v. S. W. Yates, 52 allowing defendant matter of largely discretion within the after sentence is discretion has not been the trial court. Where that appellate not revеrse. Duncan v. court will abused Billingsley States, v. 249 United 906; S. W. 187 State, 262 State v. State, W. 987 331; Fed. McClam-v. S. Kan. Yates, plead guilty in the
RAILEY, C. The judg- aside the and thereafter moved set court below, COURT OF MISSOURI, rendered, ment and to him to allow enter a of not Prosecuting On October the- Attorney County, filed Missouri, Buchanan in the circuit court of county cap- verified information which, without jurat, signature .tion, reads as follows: Prosecuting Attorney “DuVal Smith, within and for County, upon Buchanan in the State of Missouri, infor- upon belief, mation and his official oath, informs County of.Buchanan the Circuit Court that.on about day county Clyde Jonagan, June, 1924, the 4th at said Brown, certain automobile, alias Charlie A to-wit: touring Ford car, value three hundred dollars, money property States, lawful United of 0. Opplinger, being, unlawfully there P. then and and fe- away; loniously carry contrary steal, did take and pro- form of the statutеs in such cases made and *3 against peace dignity the vided, and and of the State.” person by 1924, On in October defendant and his appeared attorney, in circuit court the aforesaid, waived arraignment, plea guilty. entered a formal and of not having Thereafter, the case been continued, defendant appeared ap- and counsel in said court, his withdrew pellant’s guilty, of not and entered a punishment years assessed at His Penitentiary. two in the State judgment pronounced
The court sentence as follows:' day, prosecuting attorney, the
“Now at this comes State, for the also the defendant herein, comes in person by Reilly, open 'and his B. E. in court, whereupon the said defendant withdraws of not his guil- heretofore entered and enters herein, ty larceny, grand as in the information, agreement by parties punishment by is the imprisonment Penitentiary assessed at in the State for period years. of two adjudged “It is therefore sentenced, ordered Clyde by Jonagan, the court that the said pleaded guilty having aforesaid, alias Charlie Brown, ' OCTOBER TERM, 1925. penitentiary in the be confined of the State of Missouri period years day two for the from 22nd of Jan- uary, larceny, grand for crime county delay, sheriff of without shall, this at his earliest convey safely Clyde remove and convenience, the said Jonagan, penitentiary, Charlie Brown, alias to the said kept, confined there and treated the manner di- penitentiary law, and the warden of said rected is re- quired safely keep Clyde him, to receive and the said Jonagan, penitentiary Brown, in alias Charlie afore- until the and sentence said court herein Clyde complied Jonagan, with or until the said аlias discharged by Brown, Charlie shall be otherwise due law. course of adjudged by
“It is ordered and further court that the State of Missouri have and recover and from charges all of said its costs herein ex- pended and have therefor execution. ' by agreement parties, “And now here, defend- granted stay ant the court herein is execution for period days twenty from this date.” during regular January February 3, 1925, On following court, term of was entered record in said cause: day, comes the defendant in the above-
“Now at attorneys, application cause, and files entitled which said is now here to the Board of ordered transferred Paroles for consideration.” February
On the record said cause con- 26, 1925, *4 following: tains the day, in the above-
“Now at this comes the defendant by Lockwood, B. M. and cause, entitled aside the and hereto- files his motion to set sentence fore entered herеin.” without
Said motion was and sworn jurat caption as follows: and reads Clyde Jonagan in the above- “Comes defendant now judg- and the court to set aside the entitled cause moves OF MISSOURI, COURT permit in the said cause and defend- and sentence ment entered heretofore ant to withdraw upon issues, have follow- therein and a trial ing reasons, to-wit: is not of said offense.
“1. Because defendant in- was not advised “2. Becаuse defendant and. legal consequences plea. of said formed of the was misled and misin- “3. Because defendant plead. legal consequences of said as to the formed said enter induced to Because “4. defendant was representations be would assurances parole upon would be not sent released penitentiary. if
“That informed and believed that defendant was parole certain officers recommended granted parties parole, all he would be interested parties agreed to and did recommend said plea, thereby de- said then entered defendant wholly within learned that fendant said be Board Paroles and would discretion of the paroled. granted a that he further
“Defendant asks upon petition may verify hearing that he the above permitted above madе and that he statements necessary to show such witnesses as are summon alleged. facts Jonagan.” “C. to set
The court the motion aside overruled granted judgment aforesaid, and sentence appeal to this court. February defendant was heard on On before the motion to following occurred: and the support
. in evidence in Defendant offered aforesaid. He also offered motion the February a letter dated addressed 4,1925, evidence Joseph Club, Paroles, Board St. Automobile parole had notifying the latter that an club filed before said board. It also informed been *5 Vol. OCTOBER TERM, 1925. Jonagan.
State v. a stealing aforesaid that defendant was with tonring property Opplinger; Ford ear, P. O. plead guilty larceny grand January It 1925. meeting hoard advised said club that the next February would be held The above letter exception. еxcluded, defendant saved an On Feb- ruary it the above club 7, 1925, wrote said that parole, board oppose application would not for defendant’s a suggestions but This made certain as to conduct. his by was offered in evidence, excluded exception support He his saved. also offered original application motion aforesaid the re-hearing before the Board by Both Paroles. were overruled board.
Clyde Jonagan support testified in of his motion plea guilty substantially withdraw said as follows: twenty-one years That was party he old; he was the same appeared guilty on who in court and entered a charge; he entered because promises and inducements made to all the informa- him; got concerning parole upon tion he his attorneys through prosecuting came his not from thе any charge; parole officerin his was discussed in Hessler’s court Mr. Reiter, any, nothing lawyer, and Mr. hut Gibb any further was said official; refused admit evidence as to inducements made to defendant persons prosecution not connected with the in case. that
On testified cross-examination, attorneys he prosecuting attorney, was told Mr. Reiter, that
said he would recommend parole. any- Jonagan
D. W. testified that he did not know thing representations what about the outsidе of Gibbany, lawyer, evidence told him. His defendant’s was excluded the court.
Clyde Jonagan, sworn Sr., witness, prove by appellant’s him offered to Sup. 311 Mo. —35. MISSOURI, OF SUPREME COURT
attorney represented he would to defendant paroled ex- the court if he but entered *6 testimony. cluded this overruling with- motion defendant’s
After the of appellant motions filed the the etc., draw of judgment, were of which for a trial in arrest new and exceptions. exceptions in of a bill overruled and saved lawyers as witnesses testified Neither of defendant’s in the case. of preceding statement As from
I. shown the charged, information, a in valid was facts defendant larceny having, grand in about June the with crime of touring 4, a Ford of value of three 1924, car, stolen the Opplinger, from P. the owner dollars, hundred O. County, in thereof, Buchanan Missouri. He Parole: Plea of appeared county the in. circuit of said Guilty, formal waived 6, 1924, October arraignment, record his of and entered of not parties, agreement 1924, of cause 24, On October January term, 1925, of said court. continued to was January Reilly, his B. E. 22, 1925, defendant and On open attorney, appeared court, in of withdrew larceny grand entered a and of thereupon He information. sent- penitentiary years period to the of two from enced said January February 22nd. On filed parolej by of for a order the court which county transferred Board of Paroles' in said to the consideration. n Legislature (Laws 1921, The of in 1921 State, pp. 545-6), passed applicable County, Buchanan law Missouri, one Sections and three of which read as follows: paroles Creating
“Section 1. a board of in certain judicial judges composed judge or circuit —to be judges criminal of circuit court sheriff court and judicial com- any State county. circuit in this such —-In 5á7 TERM, OCTOBER may single county posed and which contains now aof population having a city of 75,000 contain a hereafter inhabitants, more, 200,000 and less than inhabitants or preceding according national there is census, last to the paroles, hereby such, to be known as board created judges composed judge or of the be whiсh shall court, if be criminal sev- court, criminal there county judges the sheriff such eral circuit judicial county composing circuit so court of said county. judge crim- of said of such and the sheriff court, not, if then a criminal if inal there court, judge circuit court which of that division duty trying being assigned time for the has been of said board chairman criminal cases shall ex-officio inability paroles, such chairman case presiding judgе circuit of said serve, then *7 judges com- chairman; said act such and shall be and as majority empowered posing are thereof, or a board, said paroles, grant, terminate alter or consider, revoke, to succeeding provided sections for in the next three as provided provided that law; otherwise and as hereof, persons paroles in of convicted of in consideration county, judge said circuit courts of the criminal or trying or had, conviction case wherein said said present meeting guilty receiving plea be at the of shall parole paroles considering the when of board of said guilty pleaded parties before or of were convicted who majority present; of all and him unable unless judges criminal courts and circuit court said quorum other business such to transact shall cоnstitute a paroles perform board of duties of said other such prescribed law. act or as are paroles have and to succeed “Sec. 3. Board provided powers parole endowed and exercise or 12543. Said and Section inclusive, Sections 4155 to 4167 parole and exercise and have board of shall succeed subject same parole powers to the and be thе same provided regulations are as trial endowed courts inclusive, for 4155 to and Section Sections OF MISSOURI, COURT of the Revised of Missouri of the State of Statutes Missouri for 1919.” reading
It will be observed Section three from parole power said act, that the the circuit persons laws convicted of violation of criminal provided of the State, Section 4155,Revised Statutes has been revoked and transferred to sаid board. reading It is manifest from the record herein defend- that knowledge Reilly, ant his B. E. had circuit court board, existence said bcause the transferring made and entered record order appellant’s application for a to said board. The application parole, by the for a which was overruled January board, shows, that on 10, 1922, he was arrested Wyoming, Albany, at Buffalo, taken to Missouri, charge forgery uttering answer the a check for He $200. was sentenced to-the Missouri State Reforma- tory paroled. Appellant, through attorney, Barney Reilly, E. filed an before said a re- board, hearing parole, which overruled. appears orginal application It likewise from Attorney Prosecuting that Wm. Assistant Reiter, paroled. county, of recommended defendant foregoing matters were in evidence before passing upon appellant’s circuit court in motion to with- draw and to enter a of It is not -claimed the trial misled judge promises any that the him thereof held out' when was entered. It is not any agreement that the entered into *8 paroled, to have defendant or that he was authorized to passing upon do so under the court, law. trial in plea guilty, defendant’s motion to the withdraw over- legal testimony produced ruled the same because no tending judge prosecuting to show that the trial or attorney anything appellant induce did plead guilty. counsel, His at trial the of above motion, simply undertook counsel, to show that defendant’s who 549 TERM, OCTOBER
State v. represented plea guilty entered, him the when representations that he made to him to the effect would paroled, plea if This was he entered a‘ rejeсted, testimony class of complaint which and of which the court made. is now prosecuting at-
As neither the heretofore shown, parole ap- torney any legal right to nor the court had pellant. plea attorney entered the he and When guilty, they law, as a matter of bound know, were .to parole have to be that be it would obtained, if should permitted a defendant issued If the said board. law open in made in withdraw showing presence attorney, on as that such of his only necessary to have it would case, made in this defendant’s to in- aside for set counsel paroled if he entered a him that he would form although the court and powerless knowledge- such act, were had no grant parole. vested with The trial court was dis- disposing motion to in defendant’s cretion presented guilty; heretofore on the acts overruling appellant’s in a sound discretion exercised testimony sup- excluding in offered in motion, port Richardson, 564; 98 Mo. United [State v. same. People Manriquez, Bayaud, v. 721; Fed. v. States 967; E. 34 N. State State, v. 63-4; Monahan 206 Pac. 487.] Miller 254 S. W. State, v. Yates, 566; 52 Kan. v. appellant counsel II. It is contended competent, court was excluded the evidence following support Missouri of his contention cites cases: Stephens, (1) which was Mo. right judge had trial and the case,
not a question passing punishment. In determine “Taking Judge said: court, before the Sherwood attorneys de of the we find matter, of the view special judge, and be election after the fendant, interview with bench, on the had fore he took his seat and were led to room, seem him, it would *9 550 OF MISSOURI, COURT Jonágan.
State v. by special judge, tbe believe words and acts tbe plead guilty, if the defendant would he would rеceive punishment by the lowest allowed that this under- law; standing was communicated who there- upon pleaded guilty, instead but of the lowest, was highest punishment pre- awarded which the law scribes.” There the defendant was misled judge punish- of the statement the extent of the guilty. ment which would be on a inflicted (2) Kring, Judge In State 71 v. Mo. 551, Sherwood, page attorney, apparently 552, said circuit with judge, agreed the sanction of the trial thаt defendant years, should not sentenced for more than ten twenty-five given years penitentiary. was in the (3) Judge In v. 282 State Mo. Dale, Williams prosecuting' attorney, by said the in- statements, paroled, duced the defendant to believe he would be and hence he should be entitled to guilty. The above occurred when the circuit court could grant prosecut- on the recommendation of the ing attorney.
(4) Meyer, In 222 c. 765, S. W. l. parole, by was misled as to the statements prosecuting being attorney and sheriff. Instead of paroled penitentary years. he was sent to the for five
(5) Meyer, In State the case v. Mo. came appeal, controversy here on the second and the matter in only here was referred to to the reference former' reported case in 222 W. 765. S. no
We have find fault to with the Missouri cases may It reliеd on. a be conceded that courts should exercise great degree seeing of care in that defendants prosecuting are not felonies the court or misled attorney pleading guilty missapprehension into under a facts, but this case neither the court nor the prosecuting attorney paroles jurisdiction had over promises. only brought made no matters could Such before the board. It is not claimed that either the court induced the defendant to enter TEEM, OCTOBEE v. Bushman.
Bushman Ms He represented a and no ad- entered, tbe time counsel at tbe dealt Tbe Mm. taken of vantage whatever was *10 Ms motion Mm in fairly considering judicial dis- of abuse of any plea, cretion. Higbee, affirmed. accordingly below is C., concurs. Eail opinion foregoing
PER CURIAM: The All of the court. as the ey, C., adopted opinion is the concur. judges ux. v. ESTELLE еt PEPER BUSHMAN
CHRISTIAN CHRISTIAN PEPER Appellant, BUSHMAN, PEPER. Two, 1925.
Division December power Appointment: a RECEIVER: Extent Review. The 1. conveyances appoint in a suit to set aside receiver court to propriety arbitrary, its estate neither absolute nor but real is subject of the trial is to review exercise refusal upheld, appointing unless a receiver not be vacate an order will appears scrutiny upon it its all the facts action careful parties. appear It must from the best interests of was for appointment of all the fact's the record that the examination judicial of a was the exercise wise discretion for the receiver any necessary justice, promotion made the absence other remedy. adequate appointment -: -: Conditions. authorize To 2. possession charge of real estate in of dеfendant take receiver to conveyances pending thereof of a suit to cancel determination (a) proof clearly her, must establish deterioration insolvency property, (b) defendant and waste of plaintiff prevail probability (c) that the will a reasonable merits. -: Deterioration. of real -: Deterioration in the value ground disturbing possession age, estate, is not a due adversely plaintiff. holding title under a record of one