Commonwealth v. Ferguson

• Citation: 44 Pa.Super. 626
• Parties: Commonwealth v. Ferguson, Appellant
• Decision Date: 12 December 1910
• Court: Superior Court of Pennsylvania

44 Pa.Super. 626

Commonwealth v. Ferguson, Appellant

Superior Court of Pennsylvania

December 12, 1910

Argued November 14, 1910

Appeal by Hugh Ferguson, from judgment of Q. S. Allegheny Co.-1910 No. 430, on a plea of nolo contendere in case of Commonwealth v. Hugh Ferguson et al.

Indictment for conspiracy. Before Frazer, P. J.

The facts are stated in the opinion of the Superior Court.

Errors assigned were as follows:

1. Error was committed in the court below by the imposition of a sentence of imprisonment on the appellant's plea of nolo contendere, because a plea of nolo contendere does not justify a sentence of imprisonment but only a fine.

2. Error was committed in the court below because the appellant's plea of nolo contendere was not pleadable in the crimes of conspiracy for which the appellant stood indicted as the said plea of nolo contendere is pleadable only in light misdemeanors not involving imprisonment.

3. Error was committed in the court below in that the appellant's plea of nolo contendere was not entered by leave of court and the record does not show any such leave of court.

4. Error was committed in the court below in that it does not appear that the appellant's plea of nolo contendere was accepted by the court.

5. Error was committed in the court below in that it does not appear that the appellant's plea of nolo contendere was pleaded in open court.

6. Error was committed in the court below in that the appellant was neither in fact nor is alleged in the record to have been interrogated before sentence as to whether or not he had anything to say why sentence should not be imposed upon him which right of interrogation was substantial, because thereby the appellant was deprived of his legal right to show to the court circumstances, if not of innocence, at least of mitigation of the crimes alleged.

7. Error was committed in the court below in that the appellant was neither in fact nor is alleged in the record to have been interrogated before sentence as to whether or not he had anything to say why sentence should not be imposed upon him which right of interrogation was substantial, because thereby the appellant was deprived of his legal opportunity, as he was able so to do, to show that the said plea was pleaded by him under an express promise of immunity made publicly in open court by the district attorney of Allegheny county and concurred in by the court below and made the subject of public and published comment, on the faith which the appellant entered the said plea of nolo contendere, which was thus in fact and in law not voluntary and, therefore, could not be the legal basis for judgment or sentence.

7. Error was committed in the court below in that it does not appear that the appellant was present at the imposition of sentence, which right of presence is necessary to be shown in the record in any case involving corporal punishment.

9. Error was committed in the court below in that the proceedings in the said court below violated the constitutional rights of the appellant under sec. 9 of art. I of the constitution of the commonwealth of Pennsylvania by depriving the appellant of his liberty and property without the judgment of his peers or the law of the land.

10. Error was committed in the court below in that the proceedings in the said court below violated the constitutional rights of the appellant under the fourteenth amendment of the constitution of the United States by depriving the appellant of his liberty and property without due proceess of law.

Affirmed.

Thomas James Meagher, with him Francis M. McAdams, for appellant, cited: Reg. v. Templeman, 1 Salk. 55; Buck v. Com., 107 Pa. 486; Com. v. Holstine, 132 Pa. 357; Consolidated Ice Mfg. Co. v. Medford, 18 Pa. Dist. 293; Vincent v. Huff, 4 Serg. & Rawle, 298; Com. v. Preston, 188 Pa. 429; Rex v. Garside, 2 Adolphus & Ellis, 266.

Warren I. Seymour, with him William A. Blakeley, for appellee.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

RICE, J.

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 plea as well as upon a plea of guilty. 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: Com. v. Ingersoll, 145 Mass. 381; State ex rel. v. Hudson Q. S., 46 N.J.L. 112; State v. Conway, 20 R.I. 270; Doughty v. DeAmoreel, 22 R.I. 158; United States v. Hartwell, 3 Cliff. 221; State v. Siddall, 103 Me. 144. This is the generally accepted view in the jurisdictions of this country where the practice of entering and accepting such plea is recognized: 12 Cyc. L. & P. 354; 29 Cyc. L. & P. 1053; 2 Ency. Pl. & Pr. 78; Wharton's Cr. Pl. & Pr. (9th ed.), sec. 414. And it is the view recognized in Pennsylvania: Buck v. Com., 107 Pa. 486; Com. v. Holstine, 132 Pa. 357. It would seem that at one time in England the plea was accepted only in cases where a fine was to be imposed: 2 Hawkins' P. C., c....