State v. Harvey

• Decision Date: 28 May 1924
• Docket Number: 11518.
• Citation: 123 S.E. 201,128 S.C. 447
• Parties: STATE v. HARVEY.
• Court: South Carolina Supreme Court

123 S.E. 201

128 S.C. 447

STATE v. HARVEY.

No. 11518.

Supreme Court of South Carolina

May 28, 1924

Appeal from General Sessions Circuit Court of Charleston County; I W. Bowman, Judge.

Prosecution by the State against H. Lee Harvey for violation of the banking laws. From a refusal to allow defendant to withdraw his plea of guilty and interpose a defense, he appeals. Reversed.

The order of the circuit judge mentioned in the opinion was as follows:

The above-entitled cause came on to be heard before me at Charleston on April 14, 1924, upon motion of defendant, duly noticed, to be allowed to withdraw his plea of "guilty" theretofore interposed to the indictment herein upon the following grounds:

"(1) That the defendant was misled, deceived, and taken by surprise in entering his plea of guilty and in the sentence thereon.

(2) That the defendant has a valid defense to the charges in the indictment if he be permitted to withdraw his plea and meet the charges on their merits before a court and jury."

From the showing made before us, it appears that the defendant having been indicted for certain alleged violations of the banking laws of this state, appeared in the court of sessions for Charleston county on November 26, 1923, duly represented by counsel, and entered his plea of "guilty" to two counts of the indictment, which plea was regularly signed by the defendant and supplemented by a prepared statement admitting his guilt; that, thereupon, the presiding judge entered the following sentence and judgment against him:

"The sentence of the court is that the defendant, H. Lee Harvey, be imprisoned at hard labor on the public works of Charleston county for a period of two years or for a like period in the state penitentiary and to pay a fine of $5,000."

It likewise appears that, immediately after the imposition of such sentence, the following colloquy occurred between the defendant's attorney, Mr. Grimball, and the court:

"Mr. Grimball: Did I understand your honor to say 'or' or 'and'?

The Court: 'And' "--

followed by a formal motion for leave to withdraw the plea:

Your honor, I am placed in an exceedingly embarrassing position. . At this term of court Mr. Peters, another director of this bank, pleaded guilty to eleven counts of an indictment charging the violation of this same law. Your honor allowed him to pay a fine of $750.

Realizing that my client was guilty of a technical violation of this law, without any intent on his part to violate it and taking into consideration the sentence in Mr. Peters' case, I took upon myself the responsibility of advising Mr Harvey to plead guilty to the two counts in his indictment of which he was technically guilty, as I believed the sentence would be the same as that of Mr. Peters.

Acting on my advice, Mr. Harvey has pleaded guilty to the two counts, and, to my tremendous surprise, he has been sentenced to serve at hard labor for two years and to pay a fine of $5,000, which money he hasn't got.

On the grounds that I have been taken by surprise, and also that I really do not think that your honor understands the facts of this case, I appeal to you, as an officer of this court, to allow my client to withdraw his plea of guilty."

The presiding judge refused to permit a withdrawal of such plea but reduced the sentence to imprisonment for one year and the payment of a fine of $5,000.

It will be observed that it was not then, nor is it now, contended that defendant did not understand the nature of his plea, or that the indictment fails to charge an offense, or that the defendant, or his attorney, was not fully informed, at the time of the entering of such plea, of the facts upon which he now relies as a defense.

Upon appeal to the Supreme Court, the defendant, represented by entirely different counsel, asked leave to move in the trial court for an amendment of the record, whereupon the following per curiam order was filed by the appellate court:

"The State v. H. Lee Harvey. Per Curiam Order. On motion of counsel for defendant-appellant it is ordered, that the appeal in this cause be suspended until Monday, May 12, 1924, and that, in the meantime, the defendant-appellant be, and is hereby, granted leave to make such motion in the circuit court as he may be advised. This court does not here undertake to determine the validity of any proceedings which may be had in the circuit court pursuant to this order, and with respect to the validity of such proceedings, all rights of the state are hereby reserved. [ Signed] R. C. Watts, Senior Associate Justice, Presiding. February 14, 1924."

Arguments for and against the granting of the motion were ably advanced before me by Mr. Sapp for the defendant, and by the solicitor on behalf of the state, and the court is much indebted to counsel for an ingenious and skillful presentation of the principles involved.

While the question presented is one of novel impression in this state, there can be no doubt of the authority of the court, in a proper case, and upon a sufficient showing, to vacate a judgment entered upon a plea of "guilty," and to permit a withdrawal of such plea. 16 C.J. 397 et seq. It is equally clear, however, that the right should be exercised judiciously and with an eye single to the promotion of justice, not alone to the defendant, but to the commonwealth as well. Certainly, it should not be made use of solely because of defendant's surprise at the severity of the sentence imposed, in the absence of some showing that the plea was induced by fraud, misrepresentation, or other unfair or undue means on the part of the prosecuting attorney or the presiding judge, nor unless the defendant, upon the hearing of the motion for leave to withdraw his plea, makes a prima facie showing of some probable defense to the charges against him.

In the case at bar, there is no contention whatsoever of any conduct upon the part of the solicitor or the presiding judge that would warrant me in granting the motion upon the first ground thereof. On the contrary, I am convinced, after an earnest and careful consideration of the record before me, that the sole purpose of the defendant is to escape the service of a sentence that came as a surprise to him and to his counsel.

The second ground of the motion is predicated upon the contention that the defendant was not, in fact, or in law, a director of the Enterprise Bank, and therefore could not be guilty of the charges preferred against him. It appears that the defendant was elected as a director of said bank in 1918, and that he attended, and participated as a director in, numerous meetings of the board of directors thereof during the years 1918 to 1921, inclusive. The defendant's own statement to the court, when he entered his plea, is that his brother, the president of the bank, requested him to serve as a director thereof, placing 10 shares of stock in his name in order to render him eligible therefor; that he took some part at least...