Commonwealth v. Shrope

• Decision Date: 24 March 1919
• Docket Number: 258
• Citation: 264 Pa. 246,107 A. 729
• Parties: Commonwealth v. Shrope, Appellant
• Court: Pennsylvania Supreme Court

107 A. 729

264 Pa. 246

Commonwealth v. Shrope, Appellant

No. 258

Supreme Court of Pennsylvania

March 24, 1919

Argued March 3, 1919

Appeal, No. 258, Jan. T., 1919, by defendant, from judgment of O. & T. Northampton Co., April T., 1918, No. 72, finding defendant guilty of murder in the first degree on plea of non vult contendere in case of Commonwealth v. Charles M. Shrope. Reversed.

Indictment for murder. Before STEWART, P.J.

At the trial the court accepted a plea of non vult contendere, and after the examination of witnesses, fixed the degree as of murder in the first degree, and passed sentence thereon. Defendant appealed.

Error assigned was the judgment of the court.

The judgment accordingly is reversed, and the record is remanded with direction that appellant have leave to withdraw his plea of non vult contendere formerly pleaded and plead anew to the indictment as though such plea had never been entered.

David B. Skillman, for appellant. -- When the court accepted the plea non vult contendere in this case, it was at that point precluded from finding the defendant guilty of any degree of murder higher than second. Even if the plea be given the same force as a plea of guilty, the defendant, put to extremity pleaded guilty to murder of no higher degree than all murder is presumed to be, namely, second degree: Com. v Drum, 58 Pa. 9; Com. v. McMurray, 198 Pa. 51; Com. v. Barner, 199 Pa. 335.

From another angle the court by accepting the plea was precluded from finding the defendant guilty of any degree of murder higher than second. Procedure of this sort is inconsistent with the acceptance of the non vult contendere plea: Com. v. Holstine, 132 Pa. 357; Com. v. Ferguson, 44 Pa.Super. 626; Tucker v. United States, 196 F. 260.

The plea non vult contendere was, in its origin, only acceptable in cases where a small fine was imposed: 2 Hawk., P.C. c. 31, sec. 3.

In Pennsylvania it has been extended to cases where imprisonment is the punishment: Com. v. Holstine, 132 Pa. 357; Com. v. Ferguson, 44 Pa.Super. 626.

But in Tucker v. United States, 41 L.R.A. 70, it is held that in the absence of statutory authority the plea is not acceptable where the sentence is imprisonment.

Frank P. McCluskey, for appellee. -- The plea of nolo contendere is a mild form of pleading guilty: Buck v. Commonwealth, 107 Pa. 486.

Before STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE STEWART:

The appellant was under indictment in the Oyer and Terminer Court of Northampton County charging him with the crime of murder. Upon being arraigned he pleaded non vult contendere. This plea was accepted by the court on the assumption that it was the equivalent of a plea of guilty, and the court thereupon proceeded by examination of witnesses to determine the degree of guilt. At the conclusion of the examination, in open court, the defendant and his counsel being present, the court adjudged and determined that the degree of defendant's guilt, "convicted by his own confession," was "murder of the first degree." Exceptions to the order and findings of the court were dismissed, and thereupon the appropriate sentence of the law, death by electrocution was pronounced upon and against the defendant. This appeal followed. While there are several assignments of error we may confine the discussion to a single point raised by the appeal from the adjudication, namely, was error committed by the court in accepting the plea of non vult contendere as a plea of guilty, and proceeding thereunder to determine by examination of witnesses the degree of the crime and pronouncing of sentence accordingly? If this was error, it was of such serious import that a reversal of the judgment must follow inevitably. It is only in cases where a defendant charged with murder "shall be convicted by confession," that the court shall proceed by examination of witnesses to determine the degree of guilt and give sentence accordingly, whether of the first or second degree, Act of 31st March, 1860, P.L. 382. The question immediately arises, was this appellant "convicted by confession" of the crime of murder with which he stood charged? Certain it is that except as the plea of non vult contendere entered in the case is in its legal acceptation a confession of guilt, the appellant did not stand convicted upon confession or otherwise, and the proceeding to determine the degree of the crime with which he was charged was extra judicial and determined nothing. That the plea of non vult contendere is allowable in our jurisdiction, when entered with the leave of court, is conceded. Our reports contain a number of cases where it has been allowed, and the recognition it has received in them is too emphatic to dispute its admissibility under certain conditions; but this court has yet to recognize its applicability beyond cases involving, at most, imprisonment as the penalty, and in allowing it to this extreme limit we have extended it by judicial construction beyond the purpose for which it was originally intended and designed, which was simply to enable one charged with a misdemeanor to commute the penalty affixed by the payment of a fine. It is a stranger to our statutes, known only to our common law as imported and adopted by us by Statute of 28th January, 1777. Under the common law as it stood at that period the plea when allowed was at most an implied confession of guilty, but only in cases less than capital. The rule is thus stated by Hawkins in Pleas of the Crown, Vol. 2, 8th Eng. Ed. p. 466 -- "An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine: in which case, if the court think fit to accept of such submission . . . the defendant shall not be estopped to plead not guilty to an action for the same fact," etc. In Chitty's Criminal Law, 4th Amer. Ed. from 2d London Ed. *431, the rule is thus stated -- "An implied confession is where, in a case not capital, a defendant does not directly own himself to be guilty, but tacitly admits it by throwing himself on the king's mercy, and desiring to submit to a small fine, which the court may either accept or decline, as they think proper. If they grant the request, an entry is made to this effect, that the defendant non vult contendere cum domina regina et posuit se in gratiam curiae." So far as we can learn the plea was never regarded as more than an implied admission of guilt, either in England or in this country, unless in states, of which Massachusetts is an example, where it is made the subject of statutory regulations. But the express point we wish to enforce is that neither in England nor in this country has the plea ever been allowable in capital cases. A distinguished American author, Mr....