People v. Goldman

• Decision Date: 22 January 1929
• Docket Number: No. 154.,154.
• Parties: PEOPLE v. GOLDMAN.
• Court: Michigan Supreme Court

245 Mich. 578

223 N.W. 124

PEOPLE

v.GOLDMAN.

No. 154.

Supreme Court of Michigan.

Jan. 22, 1929.

Error to Circuit Court, Wayne County; Joseph A. Moynihan, Judge.

Louis Goldman was convicted, on his plea of guilty, of assault with intent to rob, being armed with a dangerous weapon, and he brings error. Affirmed.

Argued before the Entire Bench, except NORTH, C. J., and POTTER, J. Frederick B. Brown, of Detroit, for appellant.

Wilber M. Brucker, Atty. Gen., and James E. Chenot, Pros. Atty., and P. J. M. Hally, Jr., Asst. Pros. Atty., both of Detroit, for the People.

FELLOWS, J.

Defendant and two others were charged in an information filed in the circuit court for Wayne county with robbery, armed with intent to kill or maim if resisted. The defendants were represented by counsel and counsel of their own choice, so far as this record discloses. On May 1, 1928, a jury had been impaneled, but no testimony had been taken when all the defendants asked leave to withdraw their pleas of not guilty and plead guilty of assault with intent to rob, being armed with a dangerous weapon, etc. The trial judge conducted an examination of defendants to determine whether their pleas were voluntarily entered; that of defendant, Goldman, appears in this record. It was complete, full, and searching, and leaves no doubt on this record that defendant Goldman's plea was voluntarily made; it affirmatively and conclusively established, if believed, that no inducements had been held out to him by any one. On May 19, defendant, Goldman, was sentenced to the Ionia Reformatory for a term of 15 to 25 years.

On May 22, defendant, Goldman, through his present counsel filed a motion to set aside his plea of guilty and the sentence imposed and to grant him a new trial. Accompanying the motion was his affidavit that he was advised by his former attorney that, if he was found guilty of the crime charged in the information, his sentence would be greater than for an assault with intent to commit the crime, and that his attorney advised him ‘that deponent's sentence would propably not exceed five years.’ He also says in his affidavit that he heard the assistant prosecuting attorney say to his attorney that the sentence would probably be 5 to 15 years, or possibly 7 1/2 to 15 years. This was denied in toto in an affidavit of the assistant filed in the case.

The motion for a new trial came on to be heard June 16, at which time defendant's counsel sought to urge as a further ground that defendant Goldman was advised by his former attorney ‘that the penalty was fifteen years in prison,’ and he offered to call the former attorney who had declined to make an affidavit and examine him in open court. The trial court was on opinion that, under section 2, c. 10, Act 175, Public Acts 1927 (Criminal Code), and Nichols v. Houghton Circuit Judge, 185 Mich. 654, 152 N. W. 482, Ann. Cas. 1917D, 100, it was not permissible to admit such new ground after the expiration of the time fixed for moving for a new trial. This ruling is assailed in the first assignment of error. Quite likely the court was right in so holding, but we need not so decide. The most defendant can claim for the ruling is that the court declined to permit him to amend the grounds of his motion. Such an amendment was permissible only in the discretion of the trial judge. The defendant in his affidavit had sworn to a different claim, and there was little to move the discretion of the court. But beyond all this lies the fact that a careful examination of the authorities is convincing that under the law the result would be the same whether defendant was so advised by his attorney or not.

Upon the argument in this court, counsel for the defendant most earnestly contended that it is patent from the record, and that we should conclude that all actively engaged in the case, prosecutor, trial judge, and defendants' then counsel, labored under a misapprehension that sections 15206 and 15207, C. L. 1915, were still in force, and that all were ignorant of the fact that both sections had been amended by Act 374, Public Acts 1927, which, among other things, increased the penalty for the assault. Unless forced to by the state of the record, we should not reach such a conclusion. No presumption to that effect arises; all presumptions are to the contrary. If such was the view of any one connected with the case, it was not justified by the record. The practice of the prosecutor's office in Wayne is to indorse on the information the name of the assistant drafting it, together with the statute claimed to have been violated. This information bore this indorsement:

‘Drafted by Walling.

‘Statute Act No. 374, P. A. 1927.

‘McD’

It is difficult to perceive how every one in the case could, under these circumstances, be wanting in knowledge, or notice at least, that Act No. 374 had been enacted, and that it amended the former act.

This brings us to the meritorious question of whether the trial judge was in error in refusing leave to defendant to withdraw his plea of guilty after sentence. In some states, by statute, defendants may withdraw their plea of guilty at any time before sentence, and possibly this court is committed to that doctrine. People v. Utter, 209 Mich. 214, 224, 176 N. W. 424. That case is relied upon by defendant here, but a reading of the proceedings in the court below, quoted somewhat at length in the opinion, shows that, although defendant had formally entered a plea of guilty, from first to last he insisted that he was not guilty, and demanded a trial by jury. People v. Merhige, 212 Mich. 601, 180 N. W. 418, is also relied upon, but that case was reversed on the ground that what occurred in the court below did not amount to a plea of guilty (page 610). People v. Scofield, 142 Mich. 221, 105 N. W. 610, was of...