Hubbell v. State

• Decision Date: 18 February 1930
• Docket Number: 1590
• Parties: HUBBELL v. STATE [*]
• Court: Wyoming Supreme Court

285 P. 153

41 Wyo. 275

HUBBELL v. STATE ^[*]

No. 1590

Supreme Court of Wyoming

February 18, 1930

ERROR to District Court, Converse County; HARRY P. ILSLEY, Judge.

George Hubbell was convicted of larceny and he brings error.

Affirmed.

For the plaintiff in error there was a brief by Durham and Bacheller of Casper, Wyoming, and oral argument by Mr. E. Paul Bacheller.

The plea of guilty was obtained by inducements and under the circumstances it was an abuse of discretion to refuse permission to withdraw it; authorities cited by defendant in error are not in point in this case. The right to withdraw a plea of one kind and enter another is recognized by this court. James v. State, 196 P. 1045. It should be allowed where a plea is induced by a promise. People v Bogolowski, (Ill.) 148 N.E. 260; Polk v. State, 224 P. 194; State v. Nicholas, 128 P. 543; and where the ends of justice will be subserved. Krolage v. People (Ill.) 79 N.E. 570; State v. Williams, 45 La Ann. 1357; State v. Costen, (La.) 37 So. 619. Defendant was permitted to go hence after his plea of guilty was entered, clearly indicating that the arrangement as to immunity sworn to by his attorneys was a fact. The court neglected to advise the defendant of his rights upon entering his plea of guilty; a court should do this irrespective of a statutory requirement to do so. Atkinson v. State, 128 N.E. 433, 16 C. J. 398, 28 A. L. R. 1441. Defendant acted promptly in seeking relief as soon as the state sought to impose sentence.

For the state there was a brief by William O. Wilson, Attorney General, J. A. Greenwood, Deputy Attorney General, and A. E. Stirrett, and oral argument by Mr. Stirrett.

No promise of immunity was made to defendant. Defendant disappeared after his plea of guilty about November 29, 1926, and was not apprehended until January, 1929. Leave to withdraw a plea should be made at the earliest possible moment after entry thereof. 16 C. J. 396; McKevitt v. People, (Ill.) 70 N.E. 693-695; James v. State, 27 Wyo. 384. Defendant was a fugitive from justice when apprehended. Leave to withdraw a plea is within the discretion of the court. 8 R. C. L. 111; State v. Cimini, 101 P. 891; State v. Wilmot, 163 P. 742; People v. Staples, (Cal.) 86 P. 886; U. S. v. Bayaud, 23 F. 721. The court's action will not be disturbed unless it clearly appears to have been an abuse of discretion. Joiner v. State, 126 S.W. 723; Conover v. State, 86 Ind. 99; Pattee v. State, 10 N.E. 421. Testimony of defendant alone is insufficient. 16 C. J. 397; State v. George, 64 So. 800. None of the usual grounds for withdrawal of plea of guilty are shown to have existed in this case.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

On June 15, 1926, an information was filed in the Justice Court against the defendant George Hubbell for the larceny of a horse of the value of $ 25.00. The justice finding probable cause, the defendant was required to answer the charge in the District Court and an information in that court was filed on September 29, 1926. On October 4, 1926, the defendant entered a plea of guilty. Nothing further was done in the case until January 12, 1929, when the defendant was brought before the court for sentence, after having been apprehended in this state. Thereupon the defendant filed a motion, signed by him, asking to to permitted to withdraw his plea of guilty and stating that it was obtained from him by promises of immunity and that he was induced to consent to the entry thereof by reason of such promises; that the motion was based on oral testimony which the defendant offered to submit. No oral testimony, however, was submitted to the court. The defendant also filed what he called an objection to the sentence, stating that he was not guilty of the charge against him. An affidavit was filed also by John D. Dawson, who acted for the defendant as attorney at the time of the entry of the plea of guilty. This affidavit, slightly abbreviated, states in part as follows:

"This affiant investigated the charge contained in the information on file herein and the defense of the defendant thereto, and believed and still believes that the defendant has a good and meritorious defense and that he was in fact not guilty of the charge contained in the said information; that said cause was set for trial before a jury in this Court on the 29th day of November, 1926; that associated with him in the defense of such action was Joseph Garst, attorney at law, * * * and Joseph Garst, this affiant and the defendant were present in the Court room at Douglas for the purpose of engaging in the defense of the action; that shortly before the time the cause was called for trial, Joseph Garst informed this affiant that he believed that if the defendant would enter a plea of guilty to the charge contained in the information, that no sentence would be passed upon him, conditioned upon his permanent removal from the State of Wyoming; that your affiant objected to such an arrangement, believing it to be beyond the powers of the Court to enforce; that the defendant had been theretofore arrested and charged with various felonies and misdemeanors, of all of which he had been found not guilty, or the cases had been dismissed or had not been prosecuted; nevertheless, the affiant knew that the defendant did not bear a particularly good reputation by reason of said prosecutions, for which reason, this affiant knew or believed that it would be dangerous to go to trial upon the charge contained in the information upon file herein; that affiant and Joseph Garst discussed the proposition so submitted and with a special prosecutor appointed by this Court in this cause, and was finally persuaded against his better judgment to submit the offer to the defendant; that thereupon affiant submitted the offer to the defendant, who seriously objected thereto--first, because he was not guilty of the charge contained in the information and did not want to have a criminal record, and for the further reason that he had property and assets in and around Converse County, and did not desire to be compelled to remove from Converse County to the sacrifice of his property; * * * that the offer was submitted to the defendant by this affiant at about the hour of 10 o'clock in the forenoon on November 28, 1928, and was by the defendant refused; the matter however was continued to the following day at 1:30 o'clock in the afternoon for the purpose of passing sentence on the defendant, and in the meantime, the defendant agreed to the offer and agreed to enter a plea of guilty. The agreement having been assented to by the defendant, he was thereupon released and was permitted to go at large upon his own recognizance, and he immediately withdrew from the County of Converse and since then, as your affiant has been informed and believes, has maintained his home in Nebraska; that recently the defendant was apprehended at or near the town of LaGrange and was returned to Converse County, and is now in jail waiting sentence on the charge contained in the information on his plea of guilty, obtained as herein recited."

Mr. Garst also filed an affidavit, stating that all of the matters set forth in the affidavit of Mr. Dawson were true. The substance of the claim herein, accordingly, is that the defendant was induced by his own counsel, or one of them, to enter a plea of guilty, with the understanding, consented to by one of the counsel representing the state, that defendant would not be sentenced, upon condition that he would leave the state and stay out of it. It is not claimed that counsel for the state had anything to do with inducing the defendant to enter such plea, and merely gave the consent to the stated arrangement. It does not appear whether the judge sitting in the case knew of the agreement. It is also conceded that the defendant violated the foregoing condition; that he came back into the state, was arrested in Goshen County, and brought back to Converse County to be sentenced upon his plea of guilty. The trial court refused to permit the defendant to withdraw his plea and sentenced the defendant to a term in the penitentiary, and the defendant has appealed to this court, alleging as the only error the refusal of the court to permit the plea of guilty to be withdrawn.

1. The court has the power, after a plea of guilty has been entered, to permit it to be withdrawn and a plea of not guilty to be entered instead. The discretion is not an absolute one, but the exercise thereof is subject to review, if an abuse of discretion is shown. 16 C. J. 396-398; 8 R. C. L. 111-112. The presumption is that the court acted rightly, and the question before us, accordingly, is as to whether or not it affirmatively appears from the record that the court abused its discretion herein. It is apparent from an examination of the various cases upon the subject that each case must necessarily be governed by its own facts. A number on this subject are collected in 8 Ann. Cas. 237-241, and in 20 A. L. R. 1445-1460.

It is undoubtedly true, as claimed by counsel for defendant, that the discretion of the court should be exercised liberally in favor of life and liberty. 16 C. J. 396, 8 R C. L. 111, 112. It is not the purpose or end of government to incarcerate as many of its citizens as possible. Nor is expedition in the disposition of cases, while desirable, the only desirable end in view, notwithstanding the constant clamor in that regard, and is to be shunned if it leaves nothing but baneful effects in its wake and sweeps away the safeguards of proper individual liberty, upon which the permanency and value of our government must, in a large measure, depend. Hence, if the court had any serious doubt of the defendant's...