Kidd v. Commonwealth
| Decision Date | 28 September 1934 |
| Parties | Kidd v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Statute permitting court to allow withdrawal of plea of guilty and substitution of plea of not guilty at any time before judgment does not allow withdrawal of plea after judgment, and court will not exercise its discretion by allowing withdrawal of plea after sentence, unless accused's consent to plead guilty was unwillingly given under circumstances of fear, deceit, or coercion (Criminal Code of Practice, sec. 174).
2. Criminal Law. — Where defendant indicted for felonious breaking pleaded guilty under advice of counsel in order to obtain dismissal of four other felony indictments, plea was not made under such coercion as to permit him to withdraw plea after judgment and to secure new trial (Ky. Stats., sec. 1164; Criminal Code of Practice, sec. 174, and sec. 271, subd. 7).
3. Criminal Law. — Defendant who filed, in support of motion for new trial on ground of newly discovered witnesses, his own affidavit merely, and not affidavits of the witnesses as to what they would testify, held not entitled to new trial (Criminal Code of Practice, sec. 271, subd. 6).
4. Criminal Law. — Under provision of Code that commonwealth's attorney with permission of court may at any time before case is finally submitted to jury dismiss indictment as to all or part of defendants, court may in its discretion sustain or overrule motion by commonwealth's attorney to dismiss indictment for felony (Criminal Code of Practice, sec. 243).
"Judicial 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.
5. Criminal Law. — Whether court abused its discretion in ordering dismissed indictments against defendant reinstated upon docket as penalty for withdrawal of plea of guilty to one of them was immaterial on appeal from conviction on plea of guilty, since defendant was not being tried under any of dismissed indictments (Criminal Code of Practice, sec. 243).
Appeal from Whitley Circuit Court.
T.B. CULTON for appellant.
BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.
Affirming.
At the January term of the Whitley circuit court, the appellant, Malcom Kidd, was by its grand jury indicted under section 1164, Kentucky Statutes, for the offense therein condemned of feloniously breaking into and entering the storehouse of Edith Taylor with the felonious intent to steal therefrom articles of value. Also at the same term it returned four other indictments for felony against him, the nature of which is not disclosed by the record. The Hon. C.B. Upton was employed by the appellant to represent him in the trial of these charges.
Upon the call of the cases for trial upon the eleventh day of the same term of court, after a conference had between appellant's attorney and the commonwealth's attorney, it was agreed between them that the commonwealth would dismiss four of these five felony charges against him if the defendant would plead guilty to the indictment for storehouse breaking. The appellant, when informed of the offer and upon the advice of his counsel insisting that he accept the offer, elected to plead guilty to this charge, whereupon the jury upon such plea, under the instruction of the court, returned a verdict finding the defendant guilty and fixing his punishment at two years' confinement in the penitentiary. Judgment was entered thereon, and pursuant to the agreement, upon motion of the commonwealth, the four other pending indictments against appellant were ordered stricken from the court's docket.
Thereafter the appellant, having for personal reasons, not disclosed by the record, effected a change of attorneys and employed the Hon. T.B. Culton to represent him in the further proceedings desired to be taken in his trial, on the 19th day of same terms by his new counsel filed motion to s aside the verdict and judgment formerly rendered and grant him a new trial upon the ground of newly discovered evidence. In support of his motion he filed his own affidavit, wherein he recited that when arrested upon the storehouse breaking charge, there was found on his person the check in evidence, which the commonwealth's witness Edith Taylor stated had been taken from her store when broken into upon the occasion charged, and that such circumstance of its finding on him was the only evidence the commonwealth had against him pointing to his guilt of the offense; that he had since the trial discovered two new witnesses who would give their affidavits stating that they had upon a certain night seen a boy give the defendant (here the appellant) the check in evidence which was the same check which the same boy had earlier in the same day presented and requested them to cash for him, which they had refused to do, when this boy, other than the defendant, had admitted to them that he had taken the check from the Taylor store when he had broken into it for the purpose of stealing a slot machine, which he didn't get. Further appellant stated that upon his trial he had pleaded guilty, not voluntarily but under the coercion of his then attorney's insistence, who advised him that unless he would make a plea of guilty he would publicly abandon his defense upon all the five charges pending against him, which would prejudice him before the jury and cause the pushing of the prosecution of the four other indictments against him, and that it was through the fear of such result that he was induced by the advice of his attorney to plead guilty to the store-breaking charge.
The trial court after considering appellant's motion and grounds for a new trial overruled same, when, upon motion of the commonwealth's attorney and its own motion, it further ordered that the four other felony indictments, previously ordered stricken from the docket upon appellant's then having pleaded guilty, be redocketed thereon.
The appellant, complaining both of this ruling and also of the court's overruling of his motion for a new trial, prosecutes this appeal seeking a reversal.
In support of his contention for a reversal, the appellant relies upon the provisions of section 271 of the Criminal Code of Practice and subsections 6 and 7 thereof, which are as follows:
Appellant contends that he was entitled to the new trial asked upon the grounds of the newly discovered evidence, as set out in his supporting affidavit, and also that he had failed to receive a fair trial by reason of the court's refusal to allow him a new trial to the end that he might withdraw his plea of guilty, which he contends he made under force of the alleged coercive circumstances stated. He argues that the right to a new trial for withdrawing his plea, even after judgment upon his entered plea of guilty, is given him under the rule announced in Holtman v. Commonwealth, 129 Ky. 710, 112 S.W. 851, 852. However, a reading of the cited case, relied on as supporting his claim in this, very clearly shows that the rule therein announced as to the defendant's right to withdraw his plea of guilty after judgment and to be awarded a new trial heard upon a plea of not guilty falls far short of going so far or declaring so general a rule as to warrant the giving of such relief to the appellant under the far different facts and circumstances of his case from those found in the Holtman Case, from which the defendant quotes in support of his contention as follows:
In the Holtman Case, the court only held that where a plea of guilty was entered upon trial in the justice's court for disturbing the peace, the making of such plea therein did not prevent the accused from appealing to the circuit court nor there deprive her of the right to a trial de novo as expressly provided for by Criminal Code of Practice sec. 366, and therefore, it being there a de novo trial, the court should have sustained her motion to withdraw the plea of guilty, which had been made...
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