Ferguson v. Butler County

• Decision Date: 02 February 1923
• Docket Number: No. 22533.,22533.
• Citation: 247 S.W. 795,297 Mo. 20
• Parties: FERGUSON v. BUTLER COUNTY et al.
• Court: Missouri Supreme Court

247 S.W. 795

297 Mo. 20

FERGUSON v. BUTLER COUNTY et al.

No. 22533.

Supreme Court of Missouri, in Banc.

February 2, 1923.

Appeal from Circuit Court, Butler County, F. Woody, Special Judge.

Suit by Harry Ferguson against Butler County, Mo., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Sheppard & Sheppard, of Poplar Bluff, for appellant.

John A. Gloriod and Francis M. Kinder, both of Poplar Bluff, for respondents.

DAVID E. BLAIR, J.

Suit to recover back part of a fine imposed upon and paid by plaintiff (appellant here) upon a plea of guilty in a criminal prosecution. Trial before Hon. J. F. Woody, special judge, sitting as a jury, resulted in a judgment for defendants. The county of Butler being a party defendant, the appeal comes to this court.

Many of the facts are covered in the finding of facts made by the trial judge, which is as follows:

"(1) That on the 22d day of December, 1916, the prosecuting attorney of Butler county, Mo., filed in the office of the clerk of said county his information, duly verified, in which he charged the above-named Harry Ferguson with a felony, to wit, with assault with intent to kill.

"(2) That from said information as it appered when offered in evidence in this case the charge was, when first written, that of an assault to kill with malice, but that the same had been changed so as to charge the offense as being willful and without malice. Whether this change, or amendment, was made before or after the information was filed, does not appear.

"(3) That between the filing of the information and the entry of the plea thereto, William Ferguson, an uncle of defendant, Harry Ferguson, and one W. B. Adams, went to the prosecuting attorney, and had an agreement with him by which Harry Ferguson was to enter a plea of guilty and be fines) in the sum of $10,000.

"(4) After this arrangement had been made, counsel was employed to represent Harry Ferguson in said cause.

"(5) That on the 4th day of January, 1917, and during the regular January term, 1917, of the circuit court of Butler county, Mo., the defendant, pursuant to said agreement, entered a plea of guilty to the charge, and his punishment was fixed by the court at a fine of $10,000, $2,500 to be paid at once, $2,500 in 90 days, and the remaining $5,000 to be remitted upon proof of good conduct for a period of 2 years.

"(6) That the plea of guilty was entered by agreement of the parties with a full and complete understanding of all the facts and of the amount of the fine. Pursuant to the conditions of the judgment fixing the fine, Harry Ferguson paid the sum of $2,500 thereon.

"(7) That the entry of the plea of guilty and the payment of the said sum of $2,500 were both voluntary acts on the part of Harry Ferguson.

"(8) That the $2,500 so paid on the fine was, by the sheriff of said county, paid to the county treasurer, and by him placed in the capital school fund of said county.

"(9) That no motion for a new trial, motion in arrest of judgment, motion to correct the judgment, motion to reduce the fine, no application for an appeal from said judgment was filed nor any other steps taken in the case of State of Missouri v. Harry Ferguson, except that, some time after, the court remitted the balance of the fine, to wit, $7,500."

Upon the foregoing facts, shown entirely by the evidence offered by the plaintiff, the trial court found the issues and rendered judgment in favor of defendants. Section 4482, R. S. 1909 (section 3263, R. S. 1919), under which the information was drawn when plaintiff entered his plea of guilty and the fine was assessed, did not provide any maximum fine, and hence the maximum fine is the sum of $1,000, as provided by section 4911, R. S. 1909 (section 3700, R. S. 1919). It seems that the prosecuting attorney, the trial judge who imposed the fine, and counsel for plaintiff overlooked said section 4911. Certainly plaintiff and his lay advisers did not know of its provisions. Plaintiff did not learn that the maximum fine fixed by the law was $1,000 until he was so informed, while he was in France with the American Expeditionary Forces. Upon his return he demanded repayment of the excess of $1,500 and upon refusal of the county court of said county to allow the claim, suit was filed against said county and against the judges of the county court and the county treasurer. The plaintiff relies for a recovery on two grounds: First, that he paid the excess under duress; and, second, that the circuit court was without jurisdiction to assess against him a fine in excess of $1,000, and all the judgment in excess of that gum is void.

I. The trial court found that the plea of guilty was entered by agreement with full knowledge of all the facts of the amount of the fine agreed upon, and that plaintiff's acts in entering such plea and making the $2,500 payment were voluntary. The information, as originally drawn and probably as filed, charged a crime then punishable only by imprisonment in the state penitentiary from 2 to 10 years. Conviction meant a term in prison. Plaintiff, standing then before the bar as the accused, saw an opportunity to compromise with the prosecuting attorney. The amount of the fine was fixed by agreement. Ignorant of the legal limit, plaintiff doubtless thought he was making a good bargain when he swapped a probable penitentiary sentence for a fine payable $2,500 in cash, $2,500 in 90 days, and the balance of $5,000 only to be paid conditionally. He was no more under duress than he would have been had the prosecuting attorney contended that he would secure the maximum sentence in the penitentiary from the jury, and, rather than take such chance, he had agreed to plead guilty and take the minimum term of 2 years in prison. Such arrangements are commonly made between the prosecutor and the accused, and when approved by the trial judge, are carried out. In telling plaintiff that he would send him to the penitentiary, the prosecuting attorney may either have been bluffing to secure a plea of guilty, or the evidence against plaintiff may have been so conclusive that he was entirely justified in his assertion. It is not a question here whether the plaintiff was guilty of the crime charged or not guilty. If he was guilty, he certainly thought at the time he was getting what he was paying for. The question of the limitation upon the amount he could lawfully be fined did not enter into the question in plaintiff's mind at all.

We have examined the cases cited by appellant. No good purpose can be served by discussing them individually. In every case where it was held the payment was made under duress, it was under circumstances of oppression, where an unlawful demand was paid to avoid a greater loss, and either under protest or under circumstances amounting to compulsion. The prosecuting attorney was within his undoubted rights in securing the conviction of plaintiff and having him sent to the penitentiary if the evidence warranted such result. Slover v. Rock, 96 Mo. App. 335, 70 S. W. 268. Doubtless plaintiff was satisfied he would be sent to the penitentiary. Hence he made terms, then entirely satisfactory to him, so far as the record shows. The alleged duress was apparently never thought of until it was discovered that the fine was excessive, and that the court could not lawfully access more then a $1,000 fine. The prosecuting attorney...