State v. Dow
| Decision Date | 01 October 1924 |
| Docket Number | 5480. |
| Citation | 229 P. 402,71 Mont. 291 |
| Parties | STATE v. DOW. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Fred Dow was convicted of transporting intoxicating liquors. From the judgment and an order denying his motion to set it aside defendant appeals. Reversed and remanded, with directions.
Grimstad & Brown, of Billings, for appellant.
Wellington D. Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.
On December 24, 1923, an information was filed in the district court of Yellowstone county charging the defendant in this action with the crime of transporting intoxicating liquor. On the same day the defendant, with his counsel Grimstad & Brown and H. C. Crippen, appeared in open court, and, after being arraigned, entered a plea of not guilty. Thereafter the case was set down for trial on January 9, 1924, but by reason of the illness of the defendant two continuances were granted and the same finally set down for trial on January 26, 1924. The record shows that during this time the defendant was confined in St. Vincent's Hospital, in Billings, under the care of Dr. Hanley.
On the afternoon of January 19 Charles A. Taylor, an attorney, without having consulted either Grimstad & Brown or Mr. Crippen, appeared before Robert C. Stong, one of the judges of the above court, at his chambers in the courthouse, and arranged to withdraw defendant's former plea of not guilty and to enter a plea of guilty instead. Thereupon Judge Stong, the county attorney, and Taylor repaired to the courtroom; Taylor entered his appearance as counsel for defendant, withdrew defendant's plea of not guilty, entered a plea of guilty, waived time for sentence, and demanded that sentence be pronounced at once. The court then pronounced its judgment that defendant pay a fine of $700 and be imprisoned in the county jail for a period of 60 days, and in default of payment of said fine that he be confined in the county jail of Yellowstone county until the same was fully satisfied, not to exceed 1 day for each $2 of said fine.
On January 24, 1924, the said attorney, Charles A. Taylor, made a motion to set aside the judgment entered on January 19 and to permit him to withdraw the plea of guilty so entered and to enter a plea of not guilty in lieu thereof. This motion was based upon an affidavit of the defendant, verified by him on January 21, which recited in substance that he had a conference with said Taylor at his room in the hospital on the afternoon of January 19, in which the charge pending against him was discussed, and as a result of which defendant authorized Taylor to appear in said case and change his plea from not guilty to guilty only upon the condition that the judge should agree to impose a penalty of not to exceed a fine of $300 and a jail sentence of not exceeding 60 days. This motion was heard by the court and denied on January 26.
Thereafter on February 1, 1924, defendant by his regularly employed counsel, Messrs. Grimstad & Brown, filed with the court a motion for leave to reopen the motion filed on January 24 for the purpose of permitting him to present further affidavits and evidence; that said judgment and sentence be set aside; that he be permitted to withdraw the plea of guilty and enter a plea of not guilty to the information filed against him. This motion was based upon all the records and files in the case, and upon the affidavits of Fred Dow, Steffie Dow, his wife, Charles A. Taylor, and O. King Grimstad.
Fred Dow's affidavit sets out at greater detail the circumstances connected with his authorizing Taylor to appear for him in this action and the extent of his authority. He says that he was taken to the hospital prior to January 9, and had been sick in bed under the care of a doctor ever since; that on January 19 Taylor came to see him at the hospital, and said that he (Taylor) could get a judgment or sentence in this case of not to exceed $300 and 60 days in jail, with jail sentence suspended, if defendant would permit Taylor to see Judge Stong, the judge before whom the case was pending; that he told Taylor that Grimstad & Brown and H. C. Crippen were his attorneys, and that nothing should be done without consulting them; that Taylor said it would not be necessary to see the other lawyers, but that he would go directly before the judge, and would be able to obtain such a judgment and sentence if he were authorized to enter a plea of guilty. Defendant further says that he had never before been under arrest, and was wholly unfamiliar with court procedure; that considering his physical condition he thought it better to enter a plea of guilty under the named conditions then to go through the trouble of a trial; that Taylor was authorized to enter a plea of guilty only upon those conditions; that he stated to defendant that he would see Judge Stong at once and report back to defendant what could be done; that defendant, during this time, on account of being confined to his bed, was unable to communicate with his regular counsel by telephone. Thereupon Taylor left defendant, but went back to see him about 8 o'clock the same evening, and informed him that the judge would not accept such a plea, and would not give him such a sentence; that he then assumed that the matter was ended so far as Taylor was concerned; that he did not know of the fact that Taylor had entered a plea of guilty in the action until his wife, having read an account of the court proceeding in a newspaper, advised him of it on the following day. He further says that he has been advised by his counsel, Grimstad & Brown, that he has a good and meritorious defense to the action, and that his motion and affidavit are not made for the purposes of delay but that justice may be done in the premises.
Mrs. Dow's affidavit corroborates the statements made in her husband's affidavit. She says:
"On January 19, 1924, Chas. A. Taylor came to the room of my husband in St. Vincent's Hospital at Billings, Mont., and stated to him, in my presence, that, if my husband would change his plea of not guilty to guilty, the said Chas. A. Taylor could get the court to give him not more than 60 days, and to suspend the sentence, and fine him not more than $300, and that the said Chas. A. Taylor would be glad to see the judge and see if this couldn't be done, and that both myself and my husband thereupon informed him that if he could get such a sentence that my husband would be willing to change his plea of not guilty to guilty, but under no circumstances should he change his plea of not guilty to guilty except under those circumstances."
Charles A. Taylor filed an affidavit in support of this motion, in which he said that in his talk with the defendant the latter mentioned a fine not to exceed $300 and a jail sentence not to exceed 60 days, and that his authority to change defendant's plea of not guilty to guilty was limited to doing so if he could get such a sentence. The affidavit then relates at some length an...
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