People v. Brown

• Decision Date: 04 June 1884
• Citation: 19 N.W. 571,54 Mich. 15
• Court: Michigan Supreme Court
• Parties: PEOPLE v. BROWN.

19 N.W. 571

54 Mich. 15

PEOPLE v. BROWN.

Supreme Court of Michigan

June 4, 1884

On writ of error in case of one convicted and sentenced for perjury after plea of guilty, entered according to the defendant, by the procurement of court and prosecuting attorney, upon their promise of immunity, circumstances of the case minutely considered, and judgment affirmed.

The court is not the pardoning power, and a community is in error that petitions the bench in favor of a convicted criminal.

Error to Kalamazoo.

J.J Van Riper, for plaintiff.

O.T Tuthill, for defendant and appellant.

COOLEY C.J.

Respondent, in the month of September, 1883, was arrested on a warrant issued by a justice of the peace of the county of Kalamazoo, which charged him with perjury, said to have been committed as a witness on his own behalf, when being tried on a charge of unlawfully keeping open on Sunday a saloon of which he was proprietor. The justice examined a number of witnesses in support of the charge of perjury, and held the respondent for trial in the circuit court. An information, based on the charge before the justice, was then filed in the circuit court, in which, after setting out the proceedings before the justice on the charge of unlawfully keeping open the saloon on Sunday, it was averred that the said respondent "then and there appeared as a witness in his own behalf, under a plea of not guilty," and falsely, corruptly, knowingly, willfully, and maliciously gave the following evidence, which was alleged to have been material to the issue, and all of which was false: "On said Sunday, the said sixteenth day of September, as aforesaid, the said saloon was not open at all during the afternoon of said day, and no liquor was sold to any persons at any time during the said day, and no persons were in the said saloon during any portion of the said day, except the said John Brown, and his family and employes; and said saloon was not open at any time during the day except during a short time in the morning, while he was working with some hose in front of and in the forepart of the said saloon, and he saw no liquors sold by any of his employes during any portion of said day."

Being called upon to plead to the information, December 15, 1883, the respondent pleaded in abatement "that he has not had a preliminary examination, nor waived the having of such examination, as provided by law for the offense charged in said information of perjury, when properly and sufficiently laid and assigned; and that he is not and never has been a fugitive from justice." This plea was replied to by the prosecution, and overruled, and the respondent then pleaded not guilty. Subsequently he withdrew this last plea and pleaded guilty, and on January 5, 1884, he was sentenced to confinement in the state prison for one year and six months. Respondent, after being sentenced, sued out a writ of error, and he also applied for and obtained a writ of certiorari directed to the circuit judge. The affidavit on which this last writ was obtained, after setting out the filing of the information and the plea of not guilty thereto, after decision on the plea in abatement, proceeds as follows:

"That thereafter, as well as before, and from the tenth day of December last, he was often approached by said Knappen, the prosecuting attorney, who talked to deponent about his case, advising him to change his plea of not guilty, saying to him, deponent, that he would get a lighter sentence thereby, if any at all, and that if he plead guilty he would use his influence, and help him all he could with the judge to have the sentence in his, deponent's, case suspended.

"Deponent says that like talks occurred by said prosecuting attorney with him in the village of Kalamazoo at different times and places therein, subsequent to said first day of the term, together with other persons, residents of said village, and interested in behalf of deponent, till he, deponent, was led to believe, against the advice of his counsel in said case, that a plea of guilty to the information as filed against him would secure his liberty under a suspended sentence, which would be the best thing to do, rather than stand trial, and that being so impressed and influenced by said prosecuting attorney, and those who claimed to know what the judge was disposed to do in case he changed his plea to guilty, viz., that he would suspend sentence, deponent did so change his plea of not guilty to that of guilty, on the second day of January, 1884. Whereupon he was immediately remanded to jail, and there kept till Saturday, the fifth day of January, inst., when he was brought out before the court for sentence; that just previous thereto, and at no other time, Alfred J. Mills, the circuit judge, had a few moments' talk with him in the back room of the court-house, which commenced by the said judge asking deponent why he plead guilty. Whereupon deponent told him he did it because he had been advised and influenced to do it by his friends outside, in the hope of having sentence thereon suspended; that he did not intentionally or knowingly do wrong, and ought not to be imprisoned, and did not expect to be, and that he had been influenced to believe that the court would suspend sentence in his case and give him his liberty thereunder if he plead guilty to the charge, and therefore he had done it, expecting that to be the result, saying also in the same connection that he would rather die in his cell in jail that day than go to state prison for any time, and that he did not expect he would send him to state prison; that there the talk ended, and the judge told him to go out in the court-room, and the single question being put to him by the court, if he had anything to say why sentence should not be pronounced, the said court proceeded to sentence him, deponent, to the state prison at Jackson, at hard labor, for the period of one year and six months from and including said day.

"And deponent says he never plead guilty to the charge against him in said case freely and without undue influence, but, on the contrary, was unduly influenced to do as he did in pleading guilty, with the hope, understanding, and promise that he would not be sentenced to state prison if he did, but that sentence would be suspended; and that, in the single and only interview he had with the judge, he told him the circumstances under which he plead guilty, and the hope of favor and the influence that induced him to so plead.

"And deponent alleges that he is advised and believes that the proceedings by the judge of said court to make the investigation necessary and as required by him respecting the case, the circumstances of the plea of guilty to the charge, and his sentence and judgment, was erroneous, irregular, not in accordance with the statute, and void, and should be set aside and quashed, for the following reasons, to-wit: (1) The said circuit judge did not perform his duty under act 99, Laws 1875, of this state, as required therein, before pronouncing judgment and sentence in said case. (2) The judge of said circuit court did not properly perform his duty under the statute of this state, viz., act 99, Sess.Laws 1875, after the investigation made by him as to the plea of guilty in this case, and the circumstances there made known to him under which it was made, and that the sentence and judgment thereafter pronounced are void. (3) The judge of said circuit court did not become satisfied, from any investigation and interview with deponent before pronouncing sentence and judgment, that his plea of guilty was made freely and without undue influence, and therefore such sentence and judgment are void. (4) The said judge of said circuit court, in the investigation and interview had by him in the performance of his duty under the statute of this state in this case, viz., act 99, Sess.Laws 1875, before pronouncing sentence and judgment in this case, was informed and distinctly told that the plea of guilty in this case was by reason of influence, and not freely, without promise or hope of favor, but with the understanding and belief that sentence would be suspended."

The circuit judge made return to the writ of certiorari, the material portions of which are as follows:

"In obedience to the writ of certiorari hereto attached, I, the undersigned, circuit judge, by whom said respondent was sentenced, do hereby certify and return that, as to the matters stated and set forth in the affidavit upon which said certiorari was allowed, with reference to what took place between said respondent and the prosecuting attorney of Kalamazoo county, I have no personal knowledge, but believe the same to be wholly untrue, and base such belief, in part, upon the affidavit of Frank E. Knappen, hereto annexed and made a part of this return.

"And I further return that on the tenth day of December, 1883, the respondent was arraigned upon an information charging him with perjury, and that he plead thereto not guilty; that thereupon Oscar T. Tuthill, who claimed to be acting as his attorney, asked that such plea be allowed to stand, as entered pro forma, which request was granted. And I further return that, on December 15th, the respondent caused a plea in abatement to be filed to said information; that replication was thereafter filed upon the part of the people, and, after hearing counsel for respondent and the prosecuting attorney, upon full consideration, the plea was overruled on December 20, 1883.

"And I further return that, on the twentieth of December, I was approached by Oscar T. Tuthill, the attorney for the respondent, who inquired of me whether, in the event the respondent plead guilty to the charge, I should be willing to suspend sentence; that I at

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