State v. Cochran

• Decision Date: 20 April 1933
• Docket Number: No. 32694.,32694.
• Citation: 60 S.W.2d 1
• Parties: THE STATE v. FORREST C. COCHRAN, Appellant.
• Court: Missouri Supreme Court

60 S.W.2d 1

THE STATE v.FORREST C. COCHRAN, Appellant.

No. 32694.

Supreme Court of Missouri, Division Two.

April 20, 1933.

Appeal from Jackson Circuit Court.— Hon. Darius A. Brown, Judge.

REVERSED AND REMANDED (with directions).

Henry S. Conrad, L.E. Durham and Hale Houts for appellant.

(1)The court erred in refusing to permit defendant to prepare and file, before the court sentenced the defendant, a written formal motion for leave to withdraw his plea of guilty, and in not deferring sentence until defendant had reasonable opportunity to prepare and file such motion.State v. Kring, 71 Mo. 552;State v. McFadden, 309 Mo. 117;State v. Stevens, 71 Mo. 535;State v. Carson, 231 Mo. 10;State v. Sparks, 263 Mo. 614;State v. Taylor, 301 Mo. 441.(2)The court erred in denying defendant leave to withdraw his plea of guilty upon defendant's oral application prior to sentence and judgment, and again erred in overruling defendant's formal written application to set aside the judgment and sentence and grant leave to defendant to withdraw his plea of guilty.The plea of guilty was made under and induced by a belief that the minimum two year sentence would be received, justified by statements and assurances of the prosecutor and special counsel, known and apparently sanctioned by the court.Under the circumstances, the refusal to permit the withdrawal of the plea was an abuse of discretion.State v. Stevens, 71 Mo. 536;Griffin v. State, 77 S.E. 1080;State v. Kring, 71 Mo. 552;People v. Long, 178 N.E. 918;Daniels v. State, 140 So. 724;People v. Corzoli, 175 N.E. 144;State v. Dale, 282 Mo. 669;State v. Meyer, 222 S.W. 765;State v. Richardson, 98 Mo. 564;State v. Vorchert, 312 Mo. 457;People v. Bogolowski, 148 N.E. 260;People v. Moore, 174 N.E. 386;Morgan v. State, 243 Pac. 993;Kelley v. State, 288 Pac. 1001.

Stratton Shartel,Attorney-General and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The information is in the usual form and is sufficient.State v. Moreaux, 254 Mo. 402, 162 S.W. 158;State v. Julin, 292 Mo. 264, 235 S.W. 818.(2) The first point in appellant's brief, predicating error upon the trial court's refusal to permit defendant to file a written formal motion for leave to withdraw plea of guilty before sentence was pronounced, is without merit.Defendant is not, as a matter of right, entitled to the privilege of such withdrawal before sentence and judgment.16 C.J.pp. 396, 397, secs. 728,730;State v. Keller (alias Campbell), 332 Mo. 62.The trial court did not err in refusing to permit defendant to withdraw his plea of guilty either before or after sentence.Such motion addresses itself to the discretion of the trial judge, and in the absence of a clear abuse of discretion, the appellate court will not interfere.State v. Kellar (alias Campbell), 332 Mo. 62, and cases cited therein;State v. Sublette, 4 S.W. (2d) 463;State v. Rogers, 285 S.W. 976;State v. Jonagan, 278 S.W. 775;State v. Richardson, 98 Mo. 564;State v. Williams, 6 S.W. (2d) 915;16 C.J.p. 397, par. 730;Annotation66 A.L.R. 628 et seq.;Annotation20 A.L.R. 1445 et seq.

FITZSIMMONS, C.

The question for decision in this case is whether the trial court erred in overruling appellant's motion to set aside the judgment and sentence imposed and for leave to withdraw his plea of guilty.Appellant was charged by indictment in the Circuit Court of Jackson County with embezzlement of $2,500 from the Women's Christian Association of Kansas City.He was arraigned and he pleaded not guilty on March 9, 1931.

After seven continuances and resettings of the case, appellant on October 26, 1931, withdrew his plea of not guilty and entered a plea of guilty.The trial court deferred sentence until November 7, 1931, at the request of appellant who was in a poor state of health and desired to receive medical attention before he would go to the State prison to which he had cause to believe he would be committed.On November 7, the trial court indicated its intention to sentence appellant to five years' imprisonment in the penitentiary.This is the longest term authorized by law for the offense charged.

Appellant, having anticipated a sentence of but two years, asked the court to defer judgment until appellant could prepare and file a written formal motion for leave to withdraw his plea of guilty.The court refused to grant this permission, and, after allocution, it passed final judgment of five years' imprisonment.Appellant, on the same day, November 7, 1931, which was the last day of the term, filed a motion to set aside the judgment and for leave to withdraw the plea of guilty.The court had a hearing on this motion on November 21, and overruled it on November 28.Appellant thereupon was granted an appeal to this court.

[1] I. In the recent case of State v. James William Kellar, alias Charles Harold Campbell, 332 Mo. 62, 55 S.W. (2d) 969, decided December 14, 1932, this court ruled that a defendant has not the absolute legal right to withdraw a plea of guilty before final judgment is entered and sentence pronounced.This is a matter that is within the discretion of the court.We, therefore, rule against appellant his first assignment of error, based on the refusal of the trial court to defer judgment and sentence until he could prepare a motion to withdraw the plea.

[2] II.The allowance of appellant's motion to set aside the judgment and sentence and for leave to withdraw his plea of guilty rested in the sound discretion of the trial court.But we are of opinion that, upon the record before us, the court abused its discretion in overruling the motion.The leading case upon the question under examination is State v. Stephens, 71 Mo. 535, and we believe that its principles are applicable here.The trial judge there refused to sign the bill of exceptions, and the same was signed by three bystanders and proved by five affidavits.This court, in its opinion in that case said (71 Mo. l.c. 536):

"Viewing the matter, then, in either light [namely what the bill of exceptions stated or what the trial judge certified as to the occurrences in court], we feel constrained to say that it would better have comported with the proper exercise of a sound judicial discretion, had the special judge permitted the withdrawal of the plea of guilty, and the entry, in its stead, of the usual plea.The law is not composed of a series of snares and pitfalls for the unwary, neither does it favor what Judge BLISS terms `snap judgments.'[Henslee v. Cannefax, 49 Mo. 295.]If these remarks apply in a civil case, then, a fortiori,they apply in a criminal prosecution, where the liberty of the prisoner is at stake."After reviewing the ancient authorities, this court further said in the Stephens case(71 Mo. l.c. 537):

"And, coming down to more modern authorities, and those more directly in point, we find that the court should freely exercise its discretion in proper cases, to allow the plea of guilty to be withdrawn, and that of not guilty to be entered in lieu thereof.And even where the defendant, after pleading guilty, has moved in arrest of judgment, and that motion overruled, should justice require, the court should permit, before judgment rendered, a withdrawal of the plea of guilty, and the substitution of the plea of not guilty.[1 Bish. Crim. Prac., sec. 465.]"

The guiding rules are that a plea of guilty is but a confession in open court.Like a confession out of court it should be received with caution.It should never be received unless it is freely and voluntarily made.[3] If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea.The law favors a trial on its merits.[Griffin v. State, 77 S.W. 1080, 2 Enc.P. & P. 777;12 Cyc. 353.]

[4]Appellant's motion to vacate the judgment and for leave to withdraw the plea of guilty and enter a plea of not guilty, stated that, during the pendency of the indictment against him, certain negotiations took place looking toward a disposition of the case and other similar charges pending, and that a representative and attorney of the Women's Christian Association in the capacity of the complaining witness made known to appellant through his attorney of record that it would be satisfied with a jail sentence; that thereupon appellant's attorney conferred with the prosecuting attorney who declared that he would not consent to a jail sentence punishment, but would be satisfied with a minimum sentence in the penitentiary of two years; that counsel for defendant then further conferred with the attorney for the Women's Christian Association who then and there advised counsel for appellant that if appellant would withdraw his plea of not guilty and enter a plea of guilty, that he, attorney for the Women's Christian Association, would recommend to the court as satisfactory to the Women's Christian Association a sentence of two years; that thereupon counsel for the Women's Christian Association and also for appellant advised the court of the nature of the negotiations and of appellant's expectation that a sentence of two years only would be assessed; that no attempt was made to obtain an agreement of the court to such sentence, neither did the court indicate its unwillingness to conform to the suggested minimum sentence of two years.

Appellant assigned as reasons why the court should set aside the judgment and permit him to withdraw his plea of guilty: (1) At the time of the court's consideration of the sentence, after the plea of guilty had been entered, counsel for the Women's Christian Association did not advise the court definitely and distinctly that it recommended a minimum sentence of two years in the penitentiary, but left the matter to the discretion of the court, without definite and positive recommendation as...