State v. Cimini

• Decision Date: 26 May 1909
• Court: Washington Supreme Court
• Parties: STATE v. CIMINI.

101 P. 891

53 Wash. 268

STATE v. CIMINI.

Supreme Court of Washington

May 26, 1909

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Joseppi Cimini was convicted of robbery, and appeals. Affirmed.

Wesley Lloyd and Chas. E. George, for appellant.

John L McMurray and A. O. Burmeister, for the State.

RUDKIN, C.J.

On the 1st day of June, 1908, the defendant was informed against in the superior court of Pierce county for the crime of robbery. On the same day he was arraigned before the court and entered a plea of guilty as charged. On the 8th day of June, 1908 leave was asked to withdraw the plea of guilty on the ground that the defendant was induced to enter the plea by promises of immunity. The application was supported by his affidavit to the effect that he entered the plea because he was promised immunity from punishment by one James Milone, a police detective of the city of Tacoma, in case he should do so. The affidavit of the defendant was controverted by the affidavit of Milone, and on the 27th day of June, 1908, the application was denied, but the order denying the application was not signed or entered of record until November 21, 1908. On the 16th day of September, 1908, the defendant changed attorneys, and on the 18th day of September, 1908, a motion in arrest of judgment was interposed on the ground that no plea was ever entered, or, if so, that it was so entered unwittingly, unknowingly, and under misapprehension. This motion was supported by the affidavit of the defendant and opposed by the affidavits of Milone and others. On the 21st day of November, 1908, the last-mentioned motion was denied and on the same day judgment was entered on the plea of guilty. From this judgment the present appeal is prosecuted.

It is misnomer to call the second motion interposed by the appellant a motion in arrest of judgment, for under our statute (Ballinger's Ann. Codes & St. § 6967) the only grounds for moving in arrest are the following: '(1) No legal right in the grand jury to inquire into the offense charged, by reason of its not being within the jurisdiction of of the court; (2) that the facts as stated in the indictment or information do not constitute a crime or misdemeanor.' It is manifest that the objections presented by this motion do not fall under either of these provisions. However, the court below treated the motion in arrest as a renewal of the application to withdraw the plea, and this court will so consider it. If we did not take this liberal view of the question, the motion should be denied upon its face. The application to withdraw the plea was made under section 6902, Ballinger's Ann Codes & St. (Pierce's Code, § 2155) which provides that: 'At any time before judgment, the court may permit the plea of guilty to be withdrawn and other plea or pleas substituted.' As the language of the statute implies, applications of this kind are addressed to the sound discretion of the trial court. 'It is wholly within the discretion of the court whether a plea of any sort may be withdrawn. Permission may always be granted, but, unless an abuse of discretion is shown, the refusal of permission to withdraw a plea is not error.' 12 Cyc. 350. At the same time this discretion should be liberally exercised in favor of life and liberty. As said by the court in People v. Miller, 114 Cal. 10, 45 P. 986: 'Before judgment the court may at any time permit this to be done (Pen. Code, § 1018), and the discretion thus vested is one to be liberally exercised. The law seeks no unfair advantage of a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted. It holds in contemplation his natural distress, and is considerate in viewing the motives which may influence him to take one or another course. Therefore it will permit a plea of guilty to be withdrawn if it fairly appears that defendant was in ignorance of his rights and of the consequences of his act, or was unduly and improperly influenced either by hope or fear in the making of it. But the mere fact that a defendant, knowing his rights and the consequences of his act, hoped or believed, or was led by his counsel to hope or believe, that he would receive a shorter sentence or a milder punishment by pleading guilty than that which would fall to his lot after trial and conviction by jury, presents no ground for the exercise of this liberal discretion. * * * To hold that it did would be equivalent to saying that a defendant might speculate on the supposed clemency of a judge, with a right to retract, if at any time before sentence he began to think that his expectations would not be realized.' Guided by this rule, did the court below abuse its discretion? If the appellant entered his plea without hope or fear, without improper influence or promise, with full knowledge of his legal and constitutional rights and of the consequences of his act, the ruling of the court below should be affirmed. We deem it unnecessary to set forth in detail the affidavit filed in support of the motion in arrest. Suffice it to say, if that affidavit be true, there was neither an arraignment nor a plea, for the conversation therein detailed is utterly foreign to such proceedings. But this affidavit was controverted by other affidavits and...