*1 On ground the record, a reversal not warranted on the a “clear discretion,” abuse of order which the appeal is taken must be affirmed.
MR. Chief Justice Callawav Associate Justices Angstman, Stewart concur. Anderson Appellant.
STATE, Respondent, McALLISTER, (No. 7,226.) (Submitted March 19, 1934.) 1934. Decided March (2d)
[30 821.] *2 Meyer, Marry Appellant, a brief Mr. submitted orally. argued the cause Raymond Nagle, Attorney General,
Mr. T. Mr. C. Dous- J. Assistant, Attorney General, Blair, and Mr. Frank man, E. Attorney County, of Madison for the State, submitted County argued orally. Dousman the cause brief; 3'50
MR. opinion JUSTICE ANGSTMAN delivered the of the court. appeal by
This is defendant from an entered degree, in on his of of assault third and denying motion an his his order withdraw of guilty. plea of to substitute a not and appearing The of record are as follows: Information facts degree charging first the defendant with assault was filed first sustained, and there- thereto was Demurrer by leave of court. charging him with filed, information was an amended after information degree. To the amended in second assault this degree. The court on in the third entered a in the imprisonment plea imposed a six months’ sentence of sus- jail was jail county fine of The $200. and a which granted months in six pended the defendant was in confined in he was to be pay the default fine, was As soon as the sentence for of the fine. day $2 one each court applied to the orally imposed, defendant’s enter guilty and permission to withdraw granted to leave motion denied and of not This made writing. Thereafter the defendant renew the motion plea, by his own supported application to his written affidavit, counsel, father. an one of his affidavit of his counsel, Harry the effect that Meyer, was to affidavit of sus- to the information had been after the demurrer first county attorney the matter tained, he discussed with degree filing charging third assault. an amended information 26, 1933', defendant, He forth that on October sets information appeared in court and the amended his counsel, degree consent filed charging the second assault plead could that the defendant advice court He then under such an information. degree assault to third affiant prepared, “while said information was states that court, the trial sentence to mentioned the matter of casually expected a fine and asked affiant who stated to affiant $2, said, ‘Yes,’ said that that affiant and said practice to not his practice, and it was also usual kind it was any cases this punishment, but suspend same, *4 pronounce months’ sentence and to a six and a result agreeable client, as that was to affiant said impression was received that such affiant said conversation upon defendant, James imposed which would the sentence thereupon James Mc- client, informed his McAllister; affiant guilty to assault father, upon plea that a Allister, and his mentioned, sentence, as hereinabove in the third a degree, imposed, would be thereupon and he defendant and because was by suspended, led to believe affiant his sentence would be agreed guilty and did enter a to assault degree.” third He at surprised further “that he was stated only imposed sentence he impression as was under that suspended jail thereupon sentence imposed, would be and asked the permission court for to allow defendant his plea.” He further set forth he talked with defendant and that he assault, other about the and witnesses was satisfied admits that was committed in self-defense. He in his agreement county affidavit he at- had no with the torney imposed. as to what sentence would be
The himself “that defendant made affidavit which he said counsel, Harry he was informed if he Meyer, that entered degree assault in third he was to receive the sentence of sis months sentence was suspended,” only he “entered said under- on the standing and condition sen- on the that he was to receive a tence of suspended; six months and that this was to be ignorant that he was laws of the State of Montana except rights, upon of his as advised whom in the relied.” He also set forth stated the facts that he case attorneys to two other them practicing was advised good that he merits, had a defense to the. action on the on the ground justifiable that whatever he did in self- as defense. father made affidavit
Defendant’s an to the effect that by Harry Meyer, informed whom employed he had defend his “that believed James son, McAllister would ceive a six months’ sentence to assault degree in the third said sentence would sus- pended,” and that made those con- ditions. application, appeal this court denied followed. specifications In
Defendant makes three of error. the first he challenges sufficiency of the amended information.
353 upheld substantially the same as The information is 775, 467, 48 Pac. Mont. ent, Broadb 19 v. the case of State is sufficient. requiring only extended one ssignment, and the The second the court refusal of predicates error discussion, change of A change plea. permit to the defendant to de appears that fairly permitted if it ordinarily will consequences rights and of the ignorance was in of his fendant by improperly either unduly and act, or if influenced of his making appears that the it, or hope fear or J. (16 misapprehension. C. or some mistake entered under doing in recognized right so State 398.) has This court Mont. 543, Dow, 71 128 Nicholas, 470, 46 Mont. Pac. State v. v. 81 Court, Foot v. 229 State ex rel. District 402, 291, may right 979, held that the 495, 263 Pac. and has also Mont. pro has proper after been exercised in a ease Court, supra.) (State District It is a nounced. ex rel. Foot v. sub trial court and is in the discretion of the matter that rests of discretion. been an abuse only there has ject where to review Court, Each case of supra.) (State District ex rel. Foot v. circumstances, upon its own facts and depend necessity must every will fit laid down rule can be and no hard-and-fast plea, all doubts application is made When case. (People the merits v. in favor of a trial on should be resolved Fla. 801; Pope State, 342, 236 N. W. v. 254 Mich. 56 Rucker, Krolage People, 224 Ill. v. 972; 16 Ann. Cas. 487, 47 81, So. Wheeler, 349 People Ill. 235; v. 570, 8 Cas. 456, E. Ann. 79 N. court should be discretion of the 623), E. 230, 181 N. (Hubbell liberty v. of life in favor liberally exercised Idaho, Raponi, Wyo. 153; 275, 285 Pac. State, 41 855). 182 Pac. counter-affidavits, opposed were not the affidavits Here everything the truth of must, therefore, assume we Meyer Harry contains no The affidavit of in them. contained it could reason judge acts of trial or words proposed to be only punishment ably concluded suspended sentence. months’ was a six meted out affidavit, judge, according to the it was stated that practice any punishment, this eases of but that pronounce usual kind was a six sentence and months’ suspend $2, it. but This he did. There was talk a fine of immediately this the statement followed *6 it practice was not his also any punishment, to to that it not our practice was his to fine In impose $2. a of opinion, concluding unwarranted in from the was marks attributed judge to the sentence would be only that the suspended a sentence. Meyer in his affidavit stated that because of the state judge “impression”
ments of the six received the that a suspended months’ imposed. impression sentence would be An is defined in Webster’s Dictionary, International as “an New opin indistinct or notion, remembrance, indefinite or belief, ion.” & Wagnalls Funk Dictionary New Standard defines it as “a notion or belief held adequate mind without grounds.” The Century Dictionary says re notion, “a is membrance, belief, vague or often one that is or indistinct.” Thus the most that counsel in would have been warranted stating to his client was that believed, notion, or had the judge that impose suspended would a jail six months’ sen tence. He not justified in assuring this, his client that and nothing more, punishment. would be the Had he advised merely his believed, notion, client that he or had that only imposed suspended to be would sen be a tence, changed though ac plea could the sentence not be tually led imposed was different from that which defendant was permitted person A not be imposed. will believe would be right supposed clemency judge, speculate a with the of hope or expectation, belief he realizes to retract when 10, 399; People Miller, 114 (16 Cal. not J. v. realized. C. 197 People Wheeler, supra; Mahoney State, v. 986; 45 v. Pac. Arnold, 589, 447; Idaho, 39 335, 444, 149 N. E. Ind. v. 748.) applicable Mahoney 229 rule stated v. Pac. State, supra, “A where the court said: defendant should deliberately entering permitted to trifle court
355
hope
lenient
of a
reservation
guilty
with a secret
thereafter, upon a rendition of
immediately
judgment, and
for,
hoped
capriciously withdraw
judgment
than that
different
follows that
thereafter,
which it
such
set aside
should not be
judgment upon such
merely
disappointed
the accused is
because
particular
than
certain
in a
rendered;
more drastic
hoped
follow her
had
would
which the accused
753.)”
229
(State
Arnold,
Idaho,
if the defendant
notwithstanding
principles,
the above
But
to enter his
because
fact induced
counsel relative
the sentence that
statements of his
would
except
so
pronounced, and
not have done
for this assur-
would
ance,
ought
A
permitted
then he
plea.
presenting
case
Stephens,
circumstances is
of State v.
these
attorneys
535.
Mo.
There the
led ‘to
were
believe
special
words and act of the
defendant
pleaded guilty,
punishment
receive the lowest
would
al-
*7
by
understanding
law.
lowed
This
was communicated to
pleaded
thereupon
defendant,
guilty,
the
but instead of
who
highest punishment
given
which the law
he was
the
lowest
the
upon
made
judge in that case
an indorsement
prescribed. The
apparently
some of
exceptions controverted
the bill of
support
in
of the motion
out in the affidavit
the facts set
change
said:
the court
“But
we take as true
plea,
of
and
by
judge,
upon
special
made
the bill
the
the
the indorsement
attorneys
remains,
affidavits
the
as stated
the
of
fact
defendant,
they
plea
that
induced to
guilty,
were
enter a
of
the
punishment
doing
by
the
that
so
less
under
belief
severe
Viewing
matter,
maximum would be awarded.
than the
the
then,
light,
say
we
in either
feel constrained to
that it would
comported
proper
the
have
better
exercise of a sound
discretion,
special judge permitted
judicial
had the
the with-
guilty,
entry,
drawal of the
stead,
the
its
plea.”
by
usual
The case
later
was followed
the
one
State
Kring,
v.
356 directly point
While not on facts, sustaining but as right defendant in when by promises duced with reference to punishment that would be inflicted, are the following People Walker, eases: v. Ill. 250 427, 95 475, N. People Byzon, E. 685, v. 498, 267 Ill. 108 E.N. Myers State, 554, v. 115 42, State, Ind. 18 N. E. v. Moose (Okl. App.) 4 (2d) 694; Cr. is immaterial he was (State unintentionally 707, misled. Hare, 331 Mo. 56 v. (2d) S. W. 141; Dale, 763.) Mo. S. W. brings This queston us to the whether defendant told what pleading sentence imposed would be and thus misled into Meyer “impres- receiving stated that after sion” imposed, with reference to what sentence would be ’ informed suspended defendant and his father that a six months imposed. would be Defendant his affidavit statement, says made the same and he he “entered said understanding and on the condition months, receive a sentence of six which sentence suspended.”
While the father made that what Mr. defendant’s affidavit Meyer said was “that he believed James would McAllister ceive a six months’ sentence to assault degree in the third and that said sentence would be sus- pended,” said also was made “on sentence, the condition that he receive six months’ would suspended.” which sentence was to Defendant and his father, legal proceedings, unfamiliar with were war- accepting ranted in the statement of counsel sen- as what receive, assuming tence defendant would and in from what they told counsel that no fine were latter’s would imposed; they shown that were misled since promise them, permitted held out court should have *8 plea. judgment and order are is reversed and the cause county to the district court manded of Madison for new of not on the trial Callaway Mr.
MR. Stewart Justice Chief Justice concur. I in tbe result reached concur Matthews:
Mr. Justice might agreed I foregoing opinion, not do so but be- opinion, conversation In my all that is said therein. not war- judge the defendant does tween counsel my associates. placed upon learned rant construction fine, $2 remark as to a that, We are told after the facetious agree upon judge practice to “it not his stated that punishment, kind was usual but in eases of this suspend the pronounce same,” a six months’ sentence satisfactory replied which counsel that such sentence would depart with the permitted to to his client. Counsel then impression that, client would receive guilty, his the “usual” treatment. my may unduly optimistic,
It counsel be that but practice of opinion, intended to adhere his had no punishment, he should have said agreeing not that; had to follow the “usual” than he not intended more have counsel course, so advised when stated should satisfactory client, his that the “usual” would be impose might or intimated that he be satisfied to at least opinion, justified my In ad- “usual” sentence. counsel was did; consequently, pre- while I vising his am client as defendant, the sentence pared to dissatisfied with merely pronounced, is entitled to withdraw is at- more severe than was led because the sentence here, as in torney expect, in the circumstances ground cited, be reversed on the Stephens, should of abuse discretion. JustiCe I in what Mr. ANdersoN: concur said
Justice Matthews above.