McWilliams v. State

• Decision Date: 03 November 1913
• Citation: 63 So. 270,105 Miss. 844
• Court: Mississippi Supreme Court
• Parties: MARY MCWILLIAMS v. STATE

63 So. 270

105 Miss. 844

MARY MCWILLIAMS v. STATE

Supreme Court of Mississippi

November 3, 1913

October 1913

APPEAL from the circuit court of Lauderdale county, HON. JOHN L BUCKLEY, Judge.

Mary McWilliams was convicted of the unlawful sale of intoxicating liquor upon a plea of guilty. From a judgment denying her the right to withdraw her plea and defend she appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

R. D Cooper, for appellant.

Appellant exercised the right in pleading guilty under the circumstances as set out in the motion to withdraw, but was refused the right to withdraw the plea and put herself upon the country and let a jury say whether she was guilty.

The case reported in 60 Miss. 86, declares the matter of withdrawing a plea of guilty and to plead not guilty in the sound discretion of the court, but the facts in that case are not the same as in this case. The defendant, appellant set forth in her motion that she had a good defense and that she was ignorant, etc., and not properly advised of her rights etc. I understand that what is in the sound discretion of a trial judge this court will not interfere with that this discretion must be oppressive and otherwise abused before it would be interfered with, but my position is that if the case reported in 60 Miss. 86, is meant to be a general principle of law, that it is in the discretion of the court, whether a plea of guilty may be changed to a plea of not guilty, and is not a matter of legal right under the constitutions, both federal and state, then this decision is wrong and should be overruled, but as I see the proposition this case can be reversed without overruling this decision.

A defendant may waive certain of his rights under the law, but if a plea of guilty is such a waiver of his constitutional right, that by once exercising his right in pleading guilty, he is deprived of that right in asking the court to exercise the same right in withdrawing the plea of guilty and to plead not guilty--if this be a waiver of the right under the law, it is wrong in principle.

The principle of justice and law allowing a defendant to plead guilty should be equally elastic enough to allow defendant to withdraw the plea. This principle is liberally allowed by law as to civil pleadings, and should at least be as favorable to a defendant, charged with an offense. The constitutions, both federal and state, abound in grace to a defendant charged with an offense, and it was at least intended by the statutes of the state to preserve those rights, though section 1428 of the Code of 1906 seem to be in conflict, and to that section I will undertake to address myself.

This section certainly covers a wide field, a cyclone sweep of law and justice, under color of law. The next question is as to the validity of the indictment to which the defendant entered a plea of guilty. It is dated or alleges that she sold intoxicating liquors on the 16th day of October, 1913, about two months subsequent to the time of date of finding the indictment, but it is contended that section 1428 provides for just such mistake as occurs in this indictment. This section reads as follows:

"An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue."

I know of but four cases that this court have passed upon, in construing this section, in neither of which was the validity of the statute raised. I do not think that the section should be construed in the sense that an indictment imperfectly stated as to time need not be amended so as to conform to the proof. It certainly means that such defects may be amended before trial or even after or during the trial so as to cure any variance between the date of indictment and the proof.

This section is in conflict with section 26 of the state Constitution which reads as follows: "In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of accusation." I wish to discuss the two words, "nature and cause of accusation," "nature and cause."

Here is an indictment which charges the offense was committed on a day in future, a day that has not transpired. Time should be embraced in defining the meaning of nature of the offense, and in the case of United States v. Cruikshank, 92 U.S. 588, and on page 593, under I Arch. Cr. Pr. and Pl. 291, the object of an indictment is, first to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution of the same offense; and second, to inform the court of the facts alleged, so that it may be decided whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. "A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place and circumstances."

The time when the offense was committed should be stated with some degree of certainty so as to give the defendant an opportunity to procure his witnesses.

It appears to me that time should always be essential to state...