206 N.W. 952 | Minn. | 1926
The defendant moved to set aside the judgments of conviction and his pleas of guilty. The motions were denied and he appeals from the orders denying them and from the judgments of conviction.
The claims of defendant's counsel, argued and briefed with great thoroughness, are fairly comprehended in three contentions:
(1) That under G. S. 1923, § 10667, relative to informations, a plea of guilty cannot be taken by the court unless the defendant is represented by counsel, procured by himself or appointed by the court, and that the defendant not being represented by counsel his convictions were invalid.
(2) That, if the first contention is not sustained, then he was not sufficiently informed of his right to counsel as required by G. S. 1923, § 10678.
(3) That, if neither the first nor the second contention is sustained, then the court abused its discretion in refusing him permission to withdraw his pleas of guilty.
1. Section 10667, G. S. 1923, provides for the filing of an information against one charged with crime "upon the application of the prisoner in writing, stating that he desires to plead guilty," etc. There is this proviso: *425
"Provided, that no plea of guilty shall be received or entered under the provisions of this section, unless the person charged in the indictment or information be represented by competent counsel, and in case he shall have no counsel the court shall appoint competent counsel to appear for such accused, * * * and the court shall not accept such plea of guilty or pass sentence thereon unless it is fully satisfied that the accused has had his action properly considered and advised by competent counsel."
The information was not filed against the defendant upon his application under § 10667. It was filed under §§ 10664-10666, on the initiative of the county attorney. These sections were analyzed and construed in State v. Keeney,
2. Section 10678, G. S. 1923, provides:
"If the defendant shall appear for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desires the aid of counsel."
When the case was called this occurred:
"The court: Your name is John J. McDonnell; is that right?
"The defendant: Yes, sir.
"The court: You are charged by this information with having committed the crime of grand larceny in the first degree, on December 9, 1924 — charged with having stolen $30.00 from one Albert Alverson. Have you any attorney?
"The defendant: No, sir.
"The court: Do you wish to have one, or are you ready to enter a plea? *426
"The defendant: To plead.
"The court: What do you plead, guilty or not guilty?
"The defendant: Guilty, your honor."
After a statement by the county attorney there was an extended examination by the court and upon its conclusion sentence to the reformatory was imposed.
Proceedings upon the second information followed immediately, if we interpret the record correctly, and this occurred:
"The court: There is also an information here charging you with committing the crime of grand larceny in the first degree on the 27th day of December by stealing $3.00 from one Mary Hall here in the city of Duluth. What plea do you wish to enter to that charge?
"The defendant: Guilty, your Honor."
Sentence to the state prison was then imposed.
The statute was not followed formally. We feel that it is better that the court inform a defendant, in precise terms, that he is entitled to counsel, before arraignment, with such explanation as the particular case may suggest. The Constitution gives him the right "to have the assistance of counsel in his defense." Const. art. 1, § 6. And if by reason of poverty he cannot employ counsel the court appoints. G. S. 1923, § 9957.
The omission to give the information does not go to the jurisdiction of the court. It is at the most such a defect or irregularity as ought, in the proper administration of justice, to result in a vacation of the judgment with a right to change the plea. We are constrained to hold that the information given the defendant substantially conformed to that intended by the statute and that he cannot of right have the judgments vacated with leave to change his pleas.
Counsel cites several Indiana cases, of which Batchelor v. State,
3. The motions raise the question whether, other considerations aside, there was an abuse of discretion in not vacating the judgments and allowing the defendant to change his pleas.
Whether a defendant shall be allowed to withdraw his plea of guilty, is largely within the discretion of the trial court. State v. Olson,
Orders and judgments affirmed. *428