McCrary v. State
| Decision Date | 07 April 1960 |
| Docket Number | No. 20824,20824 |
| Citation | 215 Ga. 887,114 S.E.2d 133 |
| Parties | Will James McCRARY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. This court has jurisdiction of a writ of error excepting to the refusal of the trial judge to allow the withdrawal of a plea of guilty to a capital felony.
2. There was no abuse of discretion in denying the motion to withdraw the plea of guilty in the present case.
On September 24, 1959, Willie James McCrary was indicted for the offense of murder. On October 2, 1959, he entered his plea of guilty through the attorney appointed by the court to represent him, and was sentenced to life imprisonment. During the same term of court, on October 30, 1959, he filed a motion to vacate this judgment and sentence and to withdraw the plea of guilty.
The motion to vacate alleged as follows: The movant was arraigned on October 1, 1959. His trial was set for October 22, 1959, and the court appointed an attorney to represent him. This attorney, on the same day, went to the county jail and informed the movant that the judge had appointed him to represent the movant and that if the movant 'did not plead guilty to the charges, he would get the electric chair.' The movant was adjudged insane by the Fulton County Court of Ordinary and spent a year and a half or more in the State Insane Asylum at Milledgeville, Georgia, and at the time of his arrest for this crime he was on furlough therefrom.
A rule nisi was issued requiring the solicitor's office to show cause why the motion should not be allowed. The solicitor filed a response to the motion, denying that the movant was coerced in entering his plea of guilty.
The matter was heard by oral testimony and by affidavits, and on December 2, 1959, the trial judge denied the motion to vacate the judgment and withdraw the plea of guilty. The exception is to that judgment.
Paul James Maxwell, Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., Eugene L. Tiller, Atlanta, Eugene Cook, Atty. Gen., Rubye G. Jackson, Deputy Asst. Atty. Gen., for defendant in error.
Since it is the duty of this court in every case to determine its jurisdiction, we will first consider this question. The Constitution of Georgia, Article VI, Section II, Paragraph IV (Code Ann., § 2-3704), gives this court jurisdiction 'in all cases that involve the construction of the Constitution of the State of Georgia or of the United States, * * * in all cases of conviction of a capital felony * * *' The only attempt at making a constitutional question in the present case is that quoted in the statement of facts, that is, that the movant's rights have been violated under the due-process clauses of the State and Federal Constitutions. Const. art. 1, § I, par. 3; U.S.Const. Amend. 14. The Court of Appeals has the same jurisdiction as this court to apply plain provisions of the State and Federal Constitutions, and no construction of the State or Federal Constitution is sought in this case which would give this court jurisdiction of the case. Rowland v. State, 199 Ga. 340, 34 S.E.2d 577; Boyett v. State, 205 Ga. 370, 53 S.E.2d 919; Dixon v. State, 207 Ga. 192, 60 S.E.2d 439; Robinson v. State, 209 Ga. 48, 70 S.E.2d 514.
The mere fact that a capital offense is charged in an indictment does not give this court jurisdiction of a criminal case, but there must be a conviction of a capital felony. Robinson v. State, supra; Code Ann. § 2-3704. The judgment excepted to in the present case is the denial of a motion to withdraw a plea of guilty of murder, and to vacate a judgment and sentence thereon. In Huff v. Anderson, 212 Ga. 32, 35, 90 S.E.2d 329, 331, 52 A.L.R.2d 1310, it was said: 'A plea of guilty, accepted and entered by the court, is a 'conviction' within the meaning of that word.' See also Ford v. State, 162 Ga. 422(4a), 134 S.E. 95; Jackson v. Lowry, 171 Ga. 349, 350, 155 S.E. 466; Cummings v. Perry, 194 Ga. 424, 21 S.E.2d 847. Since a plea of guilty with a sentence thereon is the equivalent of a 'conviction', the judgment under review is in a case of 'conviction of a capital felony' (Code Ann. § 2-3704), and jurisdiction is in this court.
2. Until sentence is pronounced upon a prisoner, he has an unlimited right to withdraw his plea of guilty. Code, § 27-1404. After judgment has been pronounced, a motion to withdraw the plea, made at the same term, is within the sound legal discretion of the trial judge. Strickland v. State, 199 Ga. 792, 35 S.E.2d 463. While this discretion is not an arbitrary one, and this court will reverse the finding of the trial judge if it is based on an erroneous finding of law, it will not control his findings of fact upon conflicting evidence. Jackson v. State, 99 Ga. 209, 25 S.E. 177.
The motion to withdraw the plea asserts that the movant had been adjudged insane by the Fulton County Court of Ordinary. The evidence on behalf of the movant completely fails to substantiate this contention. No certified copy of the record of an adjudication of insanity was introduced in evidence.
A. W. Van Dyke, a witness for the State, who had been appointed by the court to represent the movant prior to the acceptance had a record of being in Milledgeville. I part: On cross-examination, this witness was asked whether he had checked the records in the ordinary's office and found a previous commitment, and the witness replied that he had checked the fingerprint record.
The mother of the movant testified that her son had suffered from epilepsy since 1950. Two affidavits were filed for the movant, to the effect that the affiants had known the movant for a number of years, and it was their opinion, from their observation of him, that he was not normal mentally on a date shortly before the date he entered his plea of guilty.
The trial judge made a statement at the hearing that it was suggested to him at the time of the movant's arraignment that the movant was suffering from epilepsy, and he questioned the movant for some length of time in regard to the homicide and other matters, in order to satisfy his mind...
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