Griffin v. State
| Decision Date | 16 April 1913 |
| Docket Number | 4,645,4,648. |
| Citation | 77 S.E. 1080,12 Ga.App. 615 |
| Parties | GRIFFIN v. STATE. McCRARY v. SAME. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An oral motion to withdraw a plea of guilty, made immediately after sentence, was denied, but leave was granted to put the motion in writing at a later day during the term and support the same by affidavits. On such later day a written motion with supporting affidavits was tendered, and also a written motion to set aside the sentence. On each motion an order was granted, directing that a hearing be had on a day named, and that service be perfected on the solicitor general. The written motions were denied, and the court declined to recede from its former decision upon the oral motion. Held that, though the trial judge certifies that he intended the denial of the oral motion to be a final disposition of the matter, a writ of error may be prosecuted to review both the refusal to set aside the sentence and the refusal to allow a withdrawal of the plea.
Judgment is "pronounced," within the purview of section 971 of the Penal Code of 1910, whenever the accused is officially informed by the court of the sentence to be entered against him. After that time the accused may not, as a matter of right, withdraw a plea of guilty previously entered.
While a recommendation that one guilty of a felony of a certain class be punished as for a misdemeanor can only be made by a jury trying the case, a plea of guilty to which such recommendation is added is not void. The recommendation may be treated as surplusage, and the plea be dealt with as an unconditional plea of guilty to the felony.
The withdrawal of a plea of guilty, after sentence is pronounced is a matter addressed to the sound, legal discretion of the trial judge.
An appeal to a judge's discretion is an appeal to his judicial conscience. In exercising this discretion the trial judge settles all conflicts in evidence, and is the exclusive arbiter of the facts. He has no discretion in reference to a finding of law. The exercise of a sound, legal discretion presupposes an application of settled rules of law to the facts as found by the judge. His failure to correctly apply the law is not so much an abuse of discretion as it is an erroneous judgment, which may be corrected in the reviewing court. The Court of Appeals will never interfere with a finding of law which is correct when applied to any theory of the evidence considered by the trial judge; but if such judgment when so applied is erroneous this court has jurisdiction to review and correct it.
A "plea of guilty," being but a confession of guilt in open court, ought to be received with care and scanned with caution. It ought never to be received unless freely and voluntarily made, and if entered under a misapprehension as to its legal effect or the consequences which are to follow honestly entertained because of representations made or inducements held out either by the court or by counsel for the state, the prisoner ought to be allowed to withdraw the plea, even after sentence, if he moves promptly upon discovering that he has been misled.
While the record discloses that the trial judge declined to commit himself in advance in reference to the punishment to be imposed, the undisputed evidence shows that special counsel for the state, with the concurrence of the solicitor general entered into an agreement with counsel for the accused stipulating that, if the accused would pay over certain moneys for the benefit of the creditors of the bank alleged to have been defrauded, they would be allowed to plead guilty to one of the felony indictments upon the understanding and assurance from special counsel for the state that only a misdemeanor punishment would be imposed. It further appears that when the plea was received the trial judge knew of the agreement, and that the plea was entered upon the understanding that a misdemeanor punishment would be imposed, and that he consented for all of the indictments, except the one upon which the plea was entered, to be settled upon payment of costs, although the judge had previously declined either to approve or disapprove the agreement. Held that, while the counsel had no authority to bind the judge, yet, where a motion was made in due time to vacate a sentence of five years in the penitentiary and to allow the plea of guilty to be withdrawn, and the foregoing facts were made to appear, it was error to deny the motion.
The agreement made among the attorneys not being binding upon the trial court, this court will not direct that a misdemeanor punishment be imposed, but rules simply that the accused are entitled, if they so desire, to join issue with the state and go to trial on all of the indictments. If they are legally convicted, the punishment to be meted out, within the statutory limits, is absolutely within the discretion of the trial judge.
(Additional Syllabus by Editorial Staff.)
"Judicial discretion" is substantially synonymous with judicial power. The term "discretion" is an impartial discretion, guided and controlled in its exercise by fixed, legal principles; a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to defeat the ends of substantial justice (citing 3 Words and Phrases, 2098).
Error from Superior Court, Clarke County; C. H. Brand, Judge.
J. W. Griffin and R. H. McCrary, president and cashier of a bank, were sentenced after a plea of guilty of accepting a deposit, knowing that the bank was insolvent, and upon denial of a motion to vacate the sentence and withdraw their plea they bring error. Reversed.
Hamilton McWhorter, Jr., of Lexington, W. W. Armistead, of Crawford, Thos. J. Shackelford and Holden & Shackelford, all of Athens, and Saml. H. Sibley, of Union Point, for plaintiff in error Griffin. H. M. Rylee, E. K. Lumpkin, and E. K. Lumpkin, Jr., all of Athens, for plaintiff in error McCrary. John B. Gamble, Sol. Gen., and Cobb & Erwin, all of Athens, and Clifford Walker, Sol. Gen., of Monroe, for the State.
The Athens Trust & Banking Company failed, and, in consequence, a number of indictments were returned by the grand jury of Clarke county against Griffin, the president, and McCrary, the cashier. One of the indictments charged a violation of section 205 of the Penal Code, in that the defendants accepted a deposit of $351.10, knowing at the time that the bank was insolvent, and failed to pay it to the depositor on demand. To this indictment the accused entered a joint plea of "guilty, with recommendation that they be punished as for a misdemeanor." A sentence of five years in the penitentiary was imposed on each of the defendants. Immediately after sentence was pronounced and before it was handed to the clerk or recorded on the minutes, the accused moved orally to be allowed to withdraw their plea of guilty and enter a plea of not guilty, basing their motion upon the ground that they had been induced to plead guilty upon the assurance of the solicitor general and other state's counsel employed to assist him that the presiding judge would impose sentence as for a misdemeanor. The oral motion was denied, but the court took a recess to a later date to allow the accused to put their motion in writing and support the same by affidavits. When the court reconvened, the written motion, together with certain affidavits, was submitted, and there was also presented a written motion to set aside the judgment of conviction; both motions being based upon the same grounds and supported by the same evidence. Neither motion was granted, and each of the accused has prosecuted a writ of error to this court. The cases being identical, they were argued together, and they will be thus dealt with in the opinion which follows.
1. The trial judge certifies, in effect, that he intended the order overruling the oral motion to withdraw the plea to be final. It appears, however, that upon each of the written motions an order was granted on December 16th, directing that the motion be heard on December 21st, and that the solicitor-general be served with a copy. As the judge declined to recede from his previous refusal to allow the plea to be withdrawn, and as he considered the written motion and the accompanying affidavits in determining whether he would recede, the situation is substantially the same as if only the written motion had been filed. All this is, however, of no importance, because the accused clearly had a right to file and have determined their motion to set aside the judgment of conviction; and if that motion should have been granted it will follow, as a matter of course, that the plea of guilty may be withdrawn. The motion to vacate was filed during the term at which the judgment was rendered. During the term all judgments are "in the breast of the court," subject to be modified or vacated for good cause shown. Florida Central Ry. Co. v. Luke, 11 Ga.App. 290, 293, 75 S.E. 270. The accused clearly have the right to have reviewed the judgment refusing to set aside the sentence. They also have the right to call in question the correctness of the decision declining to allow the withdrawal of their plea. The result to them will be the same if either judgment is wrong, since, if they are permitted to withdraw their plea of guilty, the judgment upon the plea will be null, and if the latter judgment be vacated the case will stand as if no sentence had been pronounced, and their motion to withdraw their plea of guilty, enter a plea of not guilty, and go to trial must be sustained.
2. Upon arraignment a prisoner is required to answer whether he is guilty or not guilty. If he answer "guilty," such plea shall be immediately recorded on the minutes, "and...
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