*1 STATE MONTANA, OF Plaintiff and Respondent, v. LEO Appellant.
F. SCALISE, Defendant No. 9646. April 11, Submitted March 1957. Decided 1957. (2d) 309 Pac. 1010. *2 Jerry McCarvel, Mr. J. Mr. Great O’Connell and John M. Falls, appellant. for Gen., H. Mr. Olsen, Atty.
Mr. Arnold former Forrest H. Atty. Atty. Gen., Mr. Anderson, Gen., Forsell, Louis Asst. Mr. Irving McKeon, Mr. Pearson, County Atty., C. John L. and Sp. Atty. Anaconda, Asst. Gen., respondent. for McCarvel, argued orally.
Mr. Mr. and Mr. McKeon Forsell MR. CHIEF JUSTICE HARRISON: upon plea judgment guilty, from and appeal
This is plea guilty to withdraw and denial of motion involves guilty. plea of not substitute obtain- appellant with the crime of charging
Information felony, was filed on pretenses, November by false ing money having Appel- court first been obtained. 1955, 15, after leave 16, being repre- arraignment on November for appeared lant M. Dahood, McKnight, B. Wade J. E. J. sented Stewart, requested statutory time for G. and Sid Ruane entry plea. hearing by The matter was then set for 17, November at one o’clock. A motion was made county attorney appoint occasion Boyd, J. Robert special prosecutor, objected which motion was Boyd court overruled. thereupon appointed special prose- was cutor. 17,
On November and his counsel were court, at which time a demurrer was filed to the information. The court set the time for hearing the demurrer for one o’clock on November appellant’s and on that date counsel filed setting another demurrer ground. Argu- forth an additional ment was had Ap- and the court overruled the two demurrers. pellant plea entered guilty. of not set the trial of appellant to commence at ten o’clock on November 22. On No- vember counsel came before the court and requested permission to withdraw of not which request granted. was Appellant then entered a requested pronouncement judgment delayed until 10, 1955, December request granted, which and the matter *3 until continued that at date ten o’clock. appellant
On December the and counsel were court, request granted in at time a which was made and for Upon reconvening recess of fifteen minutes. of the then attorneys record, request the with consent and at the appellant, attorneys filed their withdrawal as At of record. McCarvel, request Jerry the of John Michael the names of J. O’Connell and John Michael McCarvel were entered as counsel appellant. A for the motion withdraw and to affidavit support to presented thereof was then the court. Before argument upon motion, the Mr. requested had McCarvel the Upon judge disqualify request county to himself. the at- torney, Wellington the D. Rankin and Arthur Acher names were ordered entered as for associate counsel the state. An objection request to this was made Mr. McCarvel and over- ruled the court. hearing upon motion, proceeded
The court the at the and conclusion, denied request disqualification, denied the for thereof judg- entered plea, the motion for leave withdraw the guilty. against appellant pursuant ment to his the specifications The error four in number and contend are motion, permit- grant that refusing the court erred in ting counsel for the Rankin and Acher be entered as associate state, motion, hearing in its conduct of and in intro- ducing permitting irrelevant, incompe- the introduction of tent hearing. and immaterial matter
In necessary specifications, order to understand the bewill briefly prevailed set forth the fact situation which hearing time of the before the court.
It appears Daly from the record that the Robert Kasky and Mrs. county Florence were the of Deer commissioners Lodge County. prior For hearing some weeks date of the there had been pending proceedings against removal these com- attorneys missioners. In such proceedings, removal Rankin and Acher against commissioners, were counsel of record which judge action the disqualified. district had been The com- missioners had proceedings against county instituted removal attorney, and reason appears requested of that fact it appoint a special prosecutor instant case. The information herein was not the first information which had against appellant been filed offense. The first date, information was filed on October 1955. Prior to that day October, 1955, on or the 10th appellant about that learned the fraudulent A claim had been discovered. com- plaint against justice was filed him in the court on about 12,1955. October appellant had consulted with his charge. regard Many since time with to the conferences had been had between the and these frequent approached. became more as the trial date On the 16th November, or about or 17th of *4 called upon judge knowledge the district without his counsel. He that judge very ease, told the he was worried about the jury to guilty wanted if the found him judge know if the would suspend if were found sentence, because he felt that he might very judge a At time the receive severe sentence. that he animosity him, him ill he had no will toward advised unreasonably. any punish Appel- that he hadn’t desire to him judge that he requested lant not to advise had him, judge been to see but was informed there should be no about the secret matter. appellant’s diligently working
It is that were obvious counsel for, get suspended client, sentence for their effort to judge in- November one of counsel called and was ill animosity against him he had no or will formed that family, appellant, sympathy felt for his and did desire if injure permanently. judge The also him indicated that trial, sentence left to appellant went and the punished plea, or if court felt he should be he entered extent, year prison. in the state probably some not more than suspended judge would not consider a sentence. There were eventually other conferences between the court and agreed guilty the sentence that on a would be year. one afternoon, appellant met with Saturday November
On that time had been up him that then advised who counsel suspended sentence. There a commitment on get impossible Knight’s 20, in Mr. Sunday, meeting on November was another again situation with the over the office, then went and counsel home, went secured discussion After some appellant. for further discus- with her to the office and returned his wife brought up' proposition he would then Appellant sion. serving Christmas, and if could start stay like to home January satisfactory day it would be 2nd on the sentence time, they try him- at that him, would to do told Counsel with possible much time as get before he they could everything serving the sentence. start have to would brought out in this conference factor was One other go he did not wish was that event and that pay because his vacation would not of December the 10th before *5 be 9. If he through realized unless he worked December could granted then, money up acquire time to he could some with family. which to care for his wife and His counsel were still get sentence, their efforts a if all suspended continue possible, day. and so matters rested at conclusion of that day,
On the following 21, November around three o’clock in afternoon, counsel came to the At that time courthouse. there present Boyd, were Pearson, Messrs. Rankin repre- and Acher senting state, Knight, Dahood, Messrs. Stewart and Ruane representing appellant, Mr. representing Kasky. Skedd Mrs. appellant The was also in the courthouse but was not present at the various conferences held that afternoon between court, counsel and however, privately he was consulted from time to time his counsel negotiations. as to the status of the Late in agreement the afternoon reached, was between all parties present including appellant, that plead he would the charge against Kasky him. Mrs. Florence would resign as a commissioner, and proceedings against the removal county attorney commissioners and the dropped. would be
Appellant’s they counsel then asked the court if could come change into court with day that rather day, being day than come the next back set for the trial. permission granted. Such appellant The came into court counsel, changed with his and the matter of sentencing was, appellant request set for Decem- Agreements ber 1955. prepared were in the other actions in which the and others were they involved and were disposed of.
Thereafter, appellant’s counsel continued to in his behalf, act up' petitions and drew community which were circulated in the requesting suspend the court the sentence. petitions Such presented many were to the court and signatures. contained On December when the matter came before court examined all of the ap- involved on behalf of the pellant. testified in behalf, his own and in testimony course of his stated: get year. going I understood that I was
“A. lawyers you you your advised “Q. plead guilty, And before right? A. suspended sentence, isn’t that you get wouldn’t yes. right, That’s ‘‘ guilty long before that if Q. you plead And had offered to ready -you always you get suspended were could sentence— IYes, you get suspended sentence? A. plead guilty, if could I get day, the first but didn’t have wanted to out o'f there chance. ‘‘ *6 you long time, if Q. you ready plead guilty But for a were get suspended I a get suspended A. If could could a sentence? that the sentence, absolutely I have done would have —I would it, the to do that day, they give first but wouldn’t me break day. been the first could have done “Q. day? Yes.” That could been done the first A. have charged, he he With the crime with which was reference to testified follows:
“Q. thing mentioned Isn’t that when this raise was fact Pearson, that he said that he didn’t care presence in the of Mr. that, you right, he said got Yes, if a raise? he told me that is go ahead.
“Q. get Yes, ? A. he did. And raise ‘‘Q. ? you He to make out a false claim never at time told way. way A. He tell me didn’t mention no didn’t no —he your own idea—-this idea for “Q. claim was The idea A. Yes.” making this false claim? at of the testified Scalise, wife Mrs. Francis at the was with her husband hearing on the motion that she Sunday evening and she related: counsel on meeting with evening, you were at the dis- “Q. Sunday when On Yes, you your ideas on this? I would much cussion, asked were 2 2 5 than go pen for or or for 7 him to rather have 14. Yes, only that time? but
“Q. That the consensus at A. was that reason. “Q. opinion way be- Yonr that it be better that was would only cause of for that reason. the—-A. It would better “Q. you might Yes, get And more? A. were afraid that he ’’ way thing out. worked hearing At the conclusion of the the court commented that appellant had consulted and been since advised opinion every legal October and that in his made counsel had objection every and able legal exercised tactic that skilled counsel appellant. could make on behalf Petitions had been requesting suspended sentence, received petitions acknowledged guilt appellant of the it is that petitions stated in money such that has returned. The been further stated that in appellant’s view ample made after time for consideration and advice of his to the court’s mind there was no doubt of guilt, appellant and that had worthy of no defense consideration by jury, appellant that witness stand admitted had charged. committed the act with which he was
It will be represented by seen counsel every stage proceeding, they diligent were in their efforts. Counsel also laid before the all the factors which minds their he should be aware of and consider determining which course he desired After de- to take. liberate consideration on part and consultation with his *7 wife, his decision was made to enter a in dispose that manner of this case and all the other in cases which he was involved in one Acting upon manner another. this agreement the other disposed of, appellant matters were was granted judgment additional time pronounced before was so that might get he thereby the benefit vacation allowance and support secure funds for family the of his while he was absent. question appellant the at appears There no but that all times suspended It constantly desired to secure a sentence. was be- ing it, and efforts made to secure but the court discussed was regard. appellant in that Such fact was known to the adamant plea. certainly at time entered his There was surprise, the he no refuse concerned, to far lie was when the court continued so as suspension of sentence. to consider error, turning first to specifications We will consider the entry the names of permitting that of the court the state. Rankin and counsel for the Acher associate t upon show wherein It is incumbent to he preju was appointmentof counsel for the state associate at the time rights. There no trial to be had dicial to was hearing was a motion. and none was thereafter held. The appeal respect In of this we will be limited that determination its discretion question of whether or not the court abused refusing grant plea. These counsel the withdrawal ap pending associated in other actions then which were pellant party, was a and had been on the discussions agreement disposal actions. time the was reached for the of those They pro fact situation in other were familiar with the entry their into the mat ceedings. appellant, at the time of ter, stood before the court convicted of crime with which see charged prejudice his own admission. We fail to from this of the court. action hearing on the motion Considering the conduct of now The motion was addressed to the discretion court. right has elicit all the facts avail court and the only It to the its is not limited move discretion. which will able ease, In put by a court had been forth movent. facts for the had many counsel occasions consulted hearing that motion day before the such a on the been advised itself had endeavored to made, and as stated would prepared consider the in order to be legal authorities consult legal principles applicable thereto. with the in accordance matter appellant re present counsel for remembered that It must be ‘‘ in these words: Before disqualify himself judge quested like motion, the record to show on this we would any argument Judge you, Taylor, William requests that R. defendant that the action, grounds for the yourself in this on the disqualify a witness the matter con- you be called as will reason *8 affidavit, motion, hearing tained the on this and on you personally con- grounds and for the reason that have opinion an herein, expressed sulted with defendant and have you guilt innocence, as to his at this time dis- and we ask ’’ yourself ground implied qualify on the of actual or bias. Coun- sel stated to the court that he made motion behalf of him- personally. self and his co-counsel charged bias, implied,
Thus counsel the court with actual or upon grounds: (1) witness; three That he would be called aas (2) that personally defendant; he had consulted with the (3) expressed opinion that he had guilt as to the or innocence of the defendant. proceeded
The court then call to witness stand and have all original sworn counsel for the regard charges by examined them in made counsel. They by present counsel, were cross-examined and the court itself by submitted to cross-examination present counsel. From certainly cross-examination nothing appears to indicate part bias on the of the presiding judge, any appear nor does from the examination of appellant. former counsel for the To our mind the court had all been at times fair and considerate of appellant’s position, appear and nowhere does it that he up had made upon any mind feature of the case. portion hearing
It is to this specification that the next taken, permitted of error is that the court introduction irrelevant, incompetent and immaterial matter the hear ing. material, vitally so, To our mind these matters were charges by view of appel leveled counsel for the by lant. examination conducted of each of the original charges by appellant’s directed to made present counsel, while thereafter each was ap examined pellant’s present, counsel and other there no ob jection appellant. was made on behalf of Whatever facts were developed fully explored such examination were on cross- by appellant’s examination counsel.
Coming then to the contention that the court erred in denying many affidavit, forth supporting In set
the motion. testimony motion, but his own allegations grounds for his *9 sustain his contention. complete proof of discloses failure “dicker” further. He had guilt He his but wanted to admitted already by in accordance granted concessions been by disposed of request. causes of action had been with his Other fully of plea, all times aware reason of his and while he was at not charge pending against him, he did the seriousness of the punish- prison, want to time in but wanted whatever serve At time he entered imposed suspended. ment the be one-year guilty however, he he receive of knew would suspended. it sentence and that would not be governing general legal principles This court has discussed the of many very recently of in the case pleas times, withdrawal purpose would Morgan, Mont., (2d) v. 244. No State Pac. by repeating be them here. served In case of exceptions. are every rule there general To (2d) 554, 184 Pac. we dis- Nance, 120 Mont. State v. exception in these words: cussed understanding with the a tacit defendant had “Here the consequences to follow substitution- attorney as to the prosecuting agreement guilty. From such of not of for those pleas of understanding as to the sentences had clear the defendant advantages reaped which en- recommended, certain be liquor him licenses. dispose of his establishment abled making generally encourage the court does not While this lend its charged crime, will not persons with with bargains obligations of escaping an accused criminal assistance In this case accepting the benefits thereof. after agreement apparent by court in his assisted this will the defendant are stalling tactics. His actions double-dealing attempt at any unusually consideration favorable to merit not such as of the record. especially view trial court throughout pro- taken into consideration “It is to be appellant had the assistance court the in the district ceedings he' misled now is that His contention chief able counsel. what he terms the erroneous advice of his counsel. But from the justified record the trial concluding guilt court would be accused, charged; is least and this so two of the cases, regardless otherwise, correctness, or of his counsel’s interpretation of the law. Under the circumstances of case we do not feel conflicting called opinions resolve the original defendant’s present legal question counsel on the ’’ involved. Here we have a public officer, trusted required under law to
supervise the official county conduct of all charged officers with assessing, collecting, safe-keeping, management disburse ment public revenues, they faithfully to see that perform their duties, prosecutions direct delinquencies, require them reports make and to their books and for in accounts spection, violating himself his trust filing a false claim and receiving a sum money public from the revenues to which he *10 was by not law entitled. He secured four in number, all able and skilled in law, they the devoted their sincere efforts in his behalf at all times. question There can be no but that he was well advised as the to seriousness of charge the placed against him, calling upon his judge the district displayed worry his over the outcome. His counsel every tried in manner open to them suspended to secure a sentence for they him but were unsuccessful, all and of was well aware as by his testimony. Every shown own guilty man of a crime is fearful of the sentence which will be out him, meted to more so position one in a public of honor Ably and trust. represented every step in proceedings, these endeavoring to work out. the way matter the most beneficial to suit his own convenience, cannot heard complain. now be to An point additional has been raised as whether or not under article Constitution, III of the Montana a defendant in a crim- inal by jury by case can waive trial entering a plea guilty. of provisions
Under constitutional similar ours, this conten- tion has been before the court our sister State of Idaho in Ex parte Dawson, 178, 20 Idaho 696, 699, 117 Pac. 35 L.R.A., N.S.,
1146, principal a full wherein after discussion stated: ‘trial’, as used in think all hold that
“We the authorities 1, is, an issue Const., section art. an issue fact—that means of case, if plea of presented by fact of accused—in which waived, charged jury a be felony, offense be a cannot fact, and try issue of jurisdiction court is without But, by jury. there no trial on. except can be conviction hand, knowledge accused, with full of other where right, presents no constitutional enters a trial, trial, issue and the conviction of fact there can be no admission, place is the of a verdict a accused’s and takes the jury.” provisions was
This same result under similar constitutional Webb, in the Brandon Washington reached State of v. (2d) (2d) 529, 531; Wash. 160 Pac. there the stated: provision true that under the constitutional undoubtedly “It is above, by jury may by legislative not right of trial referred obstructed, impaired, nor be judicial annulled, so action, nullity. mean, That not as make of it does or restricted by jury imperative compulsory is however, that a trial every instance, or not accused regardless whether jury. purpose triable raised an issue has of fact preserve to the accused provision was constitutional existed; it was jury as had theretofore right a trial render the inter- enactment to purpose of the fundamental person’s mandatory, in the of the accused jury face vention of charge, no issue of to the where fact voluntary plea to, by, jury. or determination left for submission in- against has been informed person state who “In this *11 ways any in one of three : may a be convicted crime dieted (2) by plea, charge; the truth of (1) by admitting in his accepted court; by jury of a open (3) or verdict in confession Rev. section 2309. by court. Rem. Stat. There and recorded pleas three likewise, state but indictment or are, in this (3) (2) guilty; judg- a (1) guilty; and former information:
251 Rem. Rev. charged. acquittal the offense ment of or conviction 2108. Stat. section a verdict law as guilty has the same effect plea of
“A court, may it be withdrawn guilty, except that, leave before time and substituted therefor another rel. ex thereon. State judgment final sentence rendering of See, 600, 473. Pac. Superior 102 Wash. Court, Lundin v. (2d) 319. also, Liliopoulos, 197, 209, 165 Wash. 5 Pac. State v. to a equivalent guilt is a confession of is “Such in- jury, except in those conviction, leaving no issue for the or imposed stances is punishment where the extent of the jury. By admits pleading guilty found the defendant other pleaded charge, well waives all defenses acts offense, than charges that the indictment or information no C.J.S., right waives trial and the incidents thereof. Law, 655; 14 Am. page Criminal section Jur. Criminal Law, 272.” section
It appears provisions clear to us under our constitutional charged felony
if a is defendant with and desires a jury, provide. trial he shall have one and our so before laws may jury He not waive a trial in favor one the court. However, may entirely plea of entering he waive trial case; has done this such event jury. nothing admits issue of fact and presents go before gen- For this exception the reason that involves an to the case rule, eral have we examined and matter with considered the great attention and concern, and we find no abuse of discretion by the Accordingly judgment trial court. the lower court is affirmed. ANGSTMAN,
MR. concur. JUSTICES CASTLES dissenting. BOTTOMLY, MR. JUSTICE I dissent. question
In this court not have before case, does guilt innocence of the defendant. *12 only question presented The is: by appeal refusing grant Did the district court abuse discretion in its in lieu plea guilty, defendant’s motion to of and withdraw his thereof, enter the plea guilty felony charged against of not to the him, he, defendant, so Scalise, have such Leo F. could charge jury? tried 21, 1955, defendant,
The record discloses that on November person by counsel, before the court in entered a plea 10, 1955, of and the as the court fixed December pronouncement judgment. time for of 10, 1955, pronouncement judgment, December and before of original defendant’s counsel withdrew as in the action. New counsel representing came into the defendant and case made, served and filed defendant’s motion to withdraw of and enter a guilty. of not The motion was based defendant, on the affidavit of F. Scalise, Leo the records and in files the case.
No were filed. The affidavit of defendant counter-affidavits very peculiar proceedings sets forth and circumstances from it can be inferred that defendant had been “brain- which guilty. pleading However, trial washed” into court denied plea. motion defendant’s to withdraw Montana, Ill, 23, provides, The Constitution of art. section “ that, hereto, right by jury trial pertinent as far as The shall of all, be secured to and remain inviolate.” The section then makes exception as in all in all follows: “but civil cases and criminal amounting felony, upon appearance, cases not default of or parties expressed manner consent as the law ** may prescribe, by jury may waived, a trial be Em- phasis supplied.
Again, showing drafters, the intent of the 23 spe- section cifically provides: “In all actions civil all criminal eases amounting felony, jury may two-thirds number of the * * verdict, Emphasis supplied. render a 2 of art. Ill of the Constitution of Section the United States ‘‘ America, provides pertinent here, far as as that: The Trial Crimes, Impeachment, by Jury; except of all in Cases shall * * *” speedy public trial By amendment, the Sixth impartial jury is assured. amendment, here, provides: as far pertinent Fourteenth abridge “No shall shall any State make or enforce law which States; privileges or immunities citizens nor United any deprive any life, liberty, property, shall person State process law; deny without due person nor within its *13 jurisdiction equal protection of the laws.” “inviolate,”
The Ill, word used in 23 art. section Constitution, violated, Montana unimpaired, means not to be sacred, against corruption. secure New Webster’s International Dictionary (2d ed.). The wording of this III section article simple is easily and interpretation. understood and needs no guarantees every
This person charged felony, with a right jury trial requested. when and desired The state gives up nothing allowing change plea. By granting change, only right sustains “sacred” defendant, preserves Bill fundamental law of our Rights. repeatedly felony
This court has held that a defendant in a persuaded guilty against case should not be to make will, accepted and such should never be when induced by fear, persuasion, promise ignorance. See State ex rel. Foot Court, v. 81 495, application District Mont. 263 979. Pac. On change plea, all doubts should be resolved in favor of a trial on the As McAllister, merits. was said in v. 96 348, State Mont. 353, (2d) 30 821, 823, op Pac. “Here the affidavits were must, posed by affidavits, counter therefore, we assume the of everything Compare truth contained in them.” State v. Nicholas, 470, 46 543; Dow, Mont. 128 Pac. State v. 71 Mont. 229 291, 402; Pac. v. 104 Carcaras, 404, 413, State Mont. 66 (2d) 774; McBane, 369, (2d) Pac. State v. 128 Mont. 275 Pac. 218; C.J.S., 22 Law, 421, pages 640, Criminal section 641. general rule Jur., same is set forth in Am. Criminal Law, 287, 286, page 960, seq. sections et cause remand the judgment
I and order and would reverse the de- jury merits on court for a trial on the the district guilty. plea of not fendant’s
MR. ADAIR: JUSTICE opinion of Mr. dissenting Justice
I in the above concur Bottomly. v. MAR- MONTANA, Plaintiff Respondent,
STATE OF Appellant. COCKRELL, VIN Defendant No. 9709. 11, 1957. Decided March 1957. Submitted March Rehearing April 12, 1957. March 1957. Denied As Amended 316. (2d) 309 Pac.