State v. Brown.

• Decision Date: 31 December 1927
• Docket Number: No. 3178.,3178.
• Parties: STATEv.BROWN.
• Court: New Mexico Supreme Court

33 N.M. 98

263 P. 502

STATE

v.BROWN.

No. 3178.

Supreme Court of New Mexico.

Dec. 31, 1927.

Syllabus by the Court.

An application to withdraw a plea of guilty and enter one of not guilty is addressed to discretion, but is reviewable for abuse.

Prompt application to withdraw a plea of guilty, induced by threat of worse consequences and by hope of leniency, should be granted where the plea and sentence occurred but a few hours after the arrest, where the accused was denied opportunity to advise with his friends, had not the benefit of counsel, was ignorant of the processes of the law, not informed of any of his rights, claims to be not guilty, makes some showing of a defense, and it does not appear that the application is made for delay or in bad faith, or that substantial justice has been done.

Appeal from District Court, Grant County; Ryan, Judge.

John Wilson Brown was convicted of the larceny of cattle on a plea of guilty. From the overruling of a motion to vacate the judgment and sentence, and to withdraw his plea and enter a plea of not guilty, defendant appeals. Appeal sustained, and cause remanded, with direction.

Discretion in denying motion to permit change of plea of guilty to not guilty will not be disturbed in absence of abuse.

Wilson & Woodbury, of Silver City, for appellant.

Robert C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

WATSON, J.

Having pleaded guilty to an information for larceny of cattle, appellant was immediately sentenced to the penitentiary for a term of not less than three nor more than five years, and to pay a fine of $500. Five days later he filed a motion to vacate the judgment and sentence and to be permitted to withdraw his plea of guilty and to enter a plea of not guilty. The motion was heard the second day following, and overruled, from which action this appeal has been taken.

Appellant's showing by supporting affidavits, and by testimony at the hearing, was not met by any counter-showing on the part of the state. It was made to appear that at about noon on the day in question an inspector of the cattle sanitary board called at appellant's ranch home, some distance from Silver City, and without exhibiting a warrant, and being armed with a pistol, informed appellant that he was under arrest and must accompany him to Silver City. Appellant apparently at first acquiesced in the arrest, but, on the suggestion of the officer that appellant's wife must also come to Silver City, appellant informed the officer that he would not submit to arrest if his wife was implicated. The officer replied that people had been killed for resisting an officer, and that the best thing he could do, if he wanted to save his wife, was to admit guilt himself. Prior to this time appellant had denied any knowledge of the incriminating hide which the officer exhibited to him as having been found upon his premises. On the way to Silver City appellant asked that he might stop at his brother's and inform him of his situation. This the officer refused. The officer also, during the journey, urged appellant that the only way he could keep his wife out of trouble was to plead guilty himself. He also promised appellant that he would recommend a suspended sentence and told him that he believed the judge would act upon his advice. After being lodged in jail a short time at Silver City, appellant was taken to the chambers of the district judge, where he pleaded guilty to the information as above stated; the whole proceedings being crowded into one afternoon. Appellant was not represented by counsel and was not informed of his constitutional rights. While there is, in addition to the information, a complaint in the record, sworn to by the district attorney, before the district judge, and entitled in the district court, it does not clearly appear that any proceedings were had thereon by way of preliminary examination. Appellant claims that he is not guilty of the offense charged and makes some explanation of the incriminating evidence against him, which is, in some respects, corroborated by others.

The trial court, finding that “the said plea of guilty was freely and voluntarily made and that the matters and things alleged in the application * * * are not true in fact,” denied the motion. The order...