Curran v. State

• Decision Date: 02 February 1909
• Citation: 99 P. 420,53 Or. 154
• Parties: CURRAN v. STATE.
• Court: Oregon Supreme Court

99 P. 420

53 Or. 154

CURRAN v. STATE.

Supreme Court of Oregon

February 2, 1909

Appeal from Circuit Court, Linn County; William Galloway, Judge.

Writ of review by Charles Curran against the State to review a judgment convicting petitioner of violating the local option law. Proceedings dismissed, and petitioner appeals. Judgment of conviction affirmed.

J.J. Whitney, for appellant.

Gale S Hill, for the State.

MOORE C.J.

This is a special proceeding to review the judgment of an inferior court. The petition for the writ sets forth the facts relating to the commencement of a criminal action in a justice's court for Linn county against the plaintiff herein, Charles Curran, for an alleged violation of the local option liquor law, and states that upon conviction thereof he was adjudged to pay a fine of $100 and the costs incurred in the prosecution. The petition contains certain assertions in relation to the plea of guilty that was entered, sets forth the reasons for interposing such confession, states the failure of the plaintiff to realize the expectations that he entertained, and assigns the errors relied upon for setting aside the judgment. The writ of review having been issued, the return thereto shows that a plea of guilty, as charged, was entered, but, before judgment was rendered thereon, the plaintiff's counsel moved to withdraw such plea and to enter a plea of not guilty. This motion was denied, and sentence pronounced as hereinbefore stated. The circuit court for that county, based on the transcript sent up to it, dismissed the proceedings, and from the latter judgment the plaintiff appeals to this court.

It is contended that the plea of guilty was put in by plaintiff's counsel, who was powerless thus to bind his client, that no valid judgment could be rendered upon a plea so interposed, and, such being the case, an error was committed in dismissing the proceedings. The Code of Criminal Procedure, applicable to the practice in the circuit courts contains a clause as follows: "A plea of guilty must in all cases be put in by the defendant in person, in open court." B. & C. Comp. § 1368. The statute regulating the practice in other tribunals, so far as material herein, is as follows: "A criminal action in a justice's court is commenced and proceeded in to final determination, and the judgment therein enforced, in the manner provided in the Code of Criminal Procedure, except as in this title otherwise specially provided." Id. § 2263. The complaint is to be deemed an indictment. Id. § 2265. When the defendant is brought before the justice, the complaint must be read to him, and he must be required to plead thereto. Id. § 2268. The defendant may plead the same plea as upon an indictment. His plea must be oral, and entered in the docket. Id. § 2269. The return to the writ of review contains a transcript of the justice's docket, an entry of which, purporting to have been made October 9, 1907, in the case of the state of Oregon, plaintiff, against Charles Curran, defendant, is as follows: "Defendant appeared in person, as well as by J.J. Whitney, his attorney, the state of Oregon appearing by Gale S. Hill, deputy district attorney, and the defendant pleads guilty to the crime charged in the complaint, and by consent the court fixes October 11, 1907, at 1 p.m., for pronouncing judgment against said defendant." It affirmatively appears from such recital that the plea was interposed by Curran himself, and, as a writ of review presents questions of law alone arising on the record of the inferior tribunal, if such record be false, it cannot be contradicted on re-examination by the reviewing court. French v. Harney Co., 33 Or. 418, 421, 54 P. 211.

It is insisted that an error was committed by the justice's court in refusing to permit the plea of guilty to be withdrawn and in substituting therefor a plea of not guilty and, this being so, the circuit court erred in dismissing the proceedings. The statute, regulating the setting aside of a plea in the nature of a confession, is as follows: "The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted therefor." B. & C. Comp. § 1369. This enactment probably grew out of the principles of the common law upon that subject, for in 2 Hawkins' Pleas, Crown, 466, it is said: "And where a person upon his arraignment actually confesses himself guilty, or unadvisedly discloses the special manner of the fact, supposing that it doth not amount to felony, where it doth, yet the judges, upon probable circumstances, that such confession may proceed from fear, menace, or duress, or from weakness or ignorance, may refuse to record such confession, and suffer the party to plead not guilty." The absolute right of a party, after pleading guilty to a criminal charge, to withdraw such admission and to interpose a plea of not guilty, is generally denied; the rule being that the determination of the question rests in the judicial discretion of the trial court. 12 Cyc. 350; Wharton, Crim.Pl. & Pr. (8th Ed.) § 414; People v. Lee, 17 Cal. 76; Morton v. People, 47 Ill. 468. Whether a plea of guilty...