Lowe v. State

• Decision Date: 29 June 1909
• Citation: 73 A. 637,111 Md. 1
• Parties: LOWE v. STATE.
• Court: Maryland Court of Appeals

73 A. 637

111 Md. 1

LOWE

v. STATE.

Court of Appeals of Maryland.

June 29, 1909.

Appeal from Circuit Court, Frederick County; Glenn H. Worthington and John C. Motter, Judges.

James H. R. Lowe pleaded guilty to a criminal offense, and from a judgment overruling his motion for suspension of judgment and sentence, and from the judgment and sentence, he appeals. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.

Edward S. Eichelberger and Hammond Urner, for appellant.

Isaac Lobe Straus, Atty. Gen., for the State.

PEARCE, J. This is an appeal from a ruling of the circuit court for Frederick county in the case of the State v. James H. R. Lowe, overruling a motion filed by the traverser, now the appellant, "for suspension of judgment and sentence, and from the judgment of said court in said case." The facts are few and simple, but the question presented is new in this state, and is one of much importance. The appellant was indicted by the grand jury of Frederick county, on February 12, 1909, for burning an unfinished and untenanted dwelling house, the property of Edward H. Walter. At the same time the grand jury indicted George T. Fisher for the same offense. It appears from the record that, prior to the indictment or presentment of either of these parties, the appellant was summoned and called by the state's attorney of Frederick county as a witness for the state, while he was in the custody of the law upon the charge above stated, to testify in certain habeas corpus proceedings, upon the petition of said George T. Fisher, and that the appellant "then and there did testify, fully, truthfully, and at length, as to all the facts touching the offense charged in the indictment in this case, which offense was, and is, the same charged against the said George T. Fisher, and which was then and there the subject of inquiry upon said habeas corpus proceedings, and the testimony so given by said traverser was given under a promise, implied in law, of the state's attorney, that the traverser should be immune and exempt from prosecution on account of any matters disclosed in his said testimony given under said implied promise of immunity." It further appears from the record that on February 22, 1909, the plea of "guilty" was entered by the traverser in the case against him; that judgment of guilty was thereupon entered thereon by the court, and that the trial of said Fisher for the same offense was at once taken up and proceeded with; that at the instance of the state's attorney the traverser remained in court for the purpose of testifying as a witness for the state against said Fisher, and that during the afternoon of the same day he was summoned, sworn, and testified in said case fully and truthfully as to his knowledge concerning said charge, and that this testimony was given under a promise of the state's attorney, implied in law, of immunity from prosecution for his participation in said offense. The record does not disclose whether Fisher was convicted or not, but the result of his trial cannot affect the question we are to determine. On February 27, 1909, after the conclusion of the trial of Fisher, the motion of the appellant for suspension of judgment in his case was heard, and thereupon his motion was overruled, and he was sentenced by the court to be confined in the Maryland Penitentiary for two years and six months. The state now moves to dismiss this appeal because the record shows that the appellant entered a plea of "guilty," upon which plea the judgment was entered, and that from a judgment by confession no appeal lies.

We have examined the numerous authorities cited by the Attorney General in support of this motion, but in none of them have we found presented the same question presented by the case now before us. The general proposition is no doubt correctly stated in the passages cited by the Attorney General from the Enc. of Pl. & Pr. and from Cyc, and from the cases supporting that text, but this general principle is subject to the qualification which is found in this case. Those passages are as follows: "A plea of guilty is a confession of guilt, and is equivalent to a conviction. The court must pronounce judgment and sentence as upon a verdict of guilty." 12 Cyc. 353. "Where the defendant pleads guilty, it is the right and duty of the court to pronounce upon him the sentence of the law, without any further proceedings, and without any independent adjudication of guilt." 19 Enc. Pl. & Pr. 437. "It has been held that a party cannot have a judgment, properly entered in a plea of guilty, reviewed either by appeal or writ of error, since such judgment is in effect a judgment by confession." 19 Enc' Pl. & Pr. 505. The case of Edina v. Beck, 47 Mo. App. 234, may be taken as an example of the cases supporting the above text, the court saying: "The appeal was properly dismissed, unless we can hold that a party may appeal from a judgment properly entered against him upon his plea of guilty, which is, in effect, a judgment by confession." The qualification to which we refer is distinctly indicated in the above citation from 19 Enc. Pl. & Pr. 505, and in the quotation from Edina v. Beck, supra, in requiring the judgment to be properly entered in order that the effect of finality shall be given it. That the word "properly" did not refer to the mere form of entry, but related to substance, is made clear in both the above works in the paragraphs immediately following two of the passages above cited. In 12 Cyc. 353, the text continues: "To authorize the acceptance and entry of a plea of guilty, and judgment and sentence thereon, the plea must be entirely voluntary. It must not be induced by fear, or by misrepresentation, persuasion, or the holding out of false hopes, nor made through ignorance or inadvertence. The court should be satisfied as to the voluntary character of the plea before giving judgment and passing sentence, and in some states such an investigation is required by statute. In some states the statute requires the court to admonish the defendant as to the consequences of the plea." In 19 Cyc. 437, the text continues: "Before proceeding to make such plea the foundation of a judgment, however, the court should, and frequently by statute must, see that it is made by a person of competent intelligence, freely and voluntarily, and with a full understanding of its nature and effect, and of the facts on which it is founded."

The bill of exceptions sets forth that at the hearing of the motion of the traverser for suspension of judgment and sentence, it was agreed between the state's attorney and the counsel for the traverser, with the consent of the court, "that the facts alleged in said motion, and the additional reasons filed in support thereof, but not the conclusions of law drawn therefrom, should be admitted and treated as proved for the purposes of said motion and hearing, to the same extent as if said allegations of fact were proven at the hearing of said motion, said motion having been filed and heard pending judgment and sentence in said case." It will be seen that this exception is somewhat in conflict with another part of the record, the exception stating that the motion was heard on February 27th, pending judgment in the case, while the docket entries show that judgment guilty, was entered by the court February 22d—five days before the motion was heard, and three days before the motion was made. It thus affirmatively appears from the record that the entry of judgment immediately followed the tender and receipt of the plea, without any such consideration as we have seen should have been given before proceeding to judgment thereon, and it nowhere appears in the record that the traverser understood that the effect of the plea would be taken to be a waiver of the promised immunity from further pro...