Com. v. Ingersoll

• Decision Date: 02 January 1888
• Citation: 14 N.E. 449,145 Mass. 381
• Parties: COMMONWEALTH v. INGERSOLL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 381

14 N.E. 449

COMMONWEALTH v. INGERSOLL.

Supreme Judicial Court of Massachusetts, Essex.

January 2, 1888

COUNSEL

F.L. Evans, for defendant.

OPINION

The plea of nolo contendere is an implied confession of the offense charged. It is discretionary with the court to receive it or not. Com. v. Horton, 9 Pick. 206. See 2 Hawk. P.C. c. 31, § 3. Also 1 Chit.Crim.Law, 431. That such a plea can be received only with the consent of the court, is but another statement of the same proposition. Such exercise of discretion on the part of the court, or consent, must, it is submitted, appear of record. Com. v. Adams, 6 Gray, 359. St.1855, c. 215, § 35, under which the decision in Com. v. Adams, supra, was made, provided that "no admission of the defendant, made in court, shall be received on the trial, without the consent of the prosecutor, except a plea of guilty." The defendant claims that this provision of law was no new legislation, but merely declaratory of the common law, with this exception, however, that the consent of the prosecutor was made necessary, instead of that of the court. The motion for leave to plead anew was addressed to the discretion of the court. It is submitted that unless the ruling of the court was made in the exercise of its discretion, it cannot be sustained.

Andrew J. Waterman, Atty. Gen., for the Commonwealth.

The ruling of the court was correct. The defendant was not entitled to plead anew, and the case was ripe for sentence. To the provisions of section 13 c. 322, Acts 1852, relative to the entry of a nolle prosequi, was added, when the law pertaining to the sale and manufacture of spirituous and intoxicating liquors was amended in 1855, (chapter 215,) a provision that, "in all cases arising under this act before a justice of the peace or police court, no admission of the defendant made in court shall be received on the trial without the consent of the prosecutor, except a plea of guilty." Section 35. The same provision was retained in Gen.St. c. 86, § 58. Also in the amended statute of 1869, c 415, § 60. Chapter 415, Acts 1869, was repealed by chapter 99, § 22, Acts 1875, and in said chapter, which was an act to regulate the sale of intoxicating liquors, there was no provision like unto section 35, c. 215, Acts 1855. There is no similar provision in the Public Statutes. At common law the plea of nolo contendere was receivable only within the discretion of the court. Com. v. Horton, 9 Pick. 206; Bish.Crim.Proc. (3d Ed.) §§ 802, 804. There being now no statutory provision relative to the consent of the prosecutor to the filing of such a plea, the question of receiving it was for the court alone. The record shows that the plea was received, and that the trial proceeded thereon. There being no error upon the face of the record, there was nothing to be done but to pass sentence. Com. v. Mahoney, 115 Mass. 152; Com. v. Winton, 108 Mass. 485.

MORTON C.J.

If the defendant in a criminal case pleads guilty, he cannot afterwards retract his plea and plead anew, except by leave of the court. If, therefore, a defendant pleads guilty in a municipal or police court, and appeals from the sentence to the superior court, he cannot of right claim a trial by jury but is liable to be sentenced upon his original plea in the court below, unless the court gives him leave to plead anew. Com. v. Mahoney, 115 Mass. 151. A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such a plea, as well as upon a plea of guilty, and such plea, if accepted cannot be withdrawn, and a plea of not guilty entered, except by leave of court. But there is a difference between the two pleas, in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion. If the plea is accepted it is not necessary or proper that the court should adjudge the party to be guilty, for that follows as a legal inference from the implied confession; but the court proceeds thereupon to pass the sentence of...