State v. Hovis

• Decision Date: 13 November 1944
• Docket Number: 39079
• Citation: 183 S.W.2d 147,353 Mo. 602
• Parties: State v. Cletus (Cletis) Hovis, Appellant
• Court: Missouri Supreme Court

183 S.W.2d 147

353 Mo. 602

State v. Cletus (Cletis) Hovis, Appellant

No. 39079

Supreme Court of Missouri

November 13, 1944

Appeal from Bollinger Circuit Court; Hon. Norwin D. Houser Judge.

Reversed and remanded.

Melvin Englehart for appellant.

(1) Plea of guilty secured by promises of a prosecuting attorney should not be received by a trial court. State v Stephens, 71 Mo. 535; State v. Krig, 71 Mo 551; 16 C.J., sec. 730, p. 398; State v. Kellar, 55 S.W.2d 969, 332 Mo. 70; State v. Harris, 81 S.W.2d 323, 336 Mo. 745; State v. Allen, 174 Mo. 689, 74 S.W. 839; State v. Hamilton, 85 S.W.2d 37, 337 Mo. 460; State v. Cochran, 60 S.W.2d 2, 332 Mo. 742; Sec. 4004, R.S. 1939; Sec. 22, Article II, Mo. Constitution. (2) The right to withdraw a plea of guilty is within the discretion of a trial court and the action of trial court is reviewed on appeal. State v. Hare, 56 S.W.2d 144, 331 Mo. 707. (3) Trial courts should freely exercise discretion in permitting an appellant to withdraw his plea of guilty because the law favors trial on the merits. State v. Cochran, 60 S.W.2d 2, 32 Mo. 42. (4) The greater weight of evidence shows that the plea of guilty was obtained by misleading statements, misapprehensions and holding out hope to the appellant which proved to be false. State v. Dale, 222 S.W. 763; State v. Meyer, 222 S.W. 765.

Roy McKittrick, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.

(1) Whether accused should be allowed to withdraw plea of guilty is within sound discretion of trial court, but such plea is reviewable by this court. State v. Kellar, 332 Mo. 62, 55 S.W.2d 969; Sec. 4273, R.S. 1939. (2) The trial court did not abuse its discretion in refusing to set aside the judgment in this case under the evidence submitted to the court. The presumption in such a case is in favor of the trial court. The denial of defendant's application to be permitted to withdraw a plea of guilty and to plead guilty and defend, will, as a rule, be sustained, where the record discloses no ground for the application, or where it appears from the record that the court's ruling was based on conflicting evidence which the court was compelled to weigh to reach a conclusion. State v. Hare, 331 Mo. 707, 56 S.W.2d 141; Sec. 4199, R.S. 1939; Brewer v. State, 180 S.W.2d 167; State v. Rogers, 285 S.W. 976; State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35.

OPINION

Tipton, J.

This is an appeal from an order overruling appellant's motion to withdraw his plea of guilty to an information charging him with perjury.

The record shows that an information was filed on March 4, 1943, in the circuit court of Bollinger County, Missouri, charging the appellant with the crime of perjury. On September 6, 1943, the appellant pleaded guilty to the charge, and the court of its own motion made an order that the sheriff of that county forthwith take and convey the appellant to Farmington, Missouri, and place him in custody of the Superintendent of Hospital No. 4, for the purpose of examining him for his mental capacity, and that the Superintendent make a written report to the court.

On December 7, 1943, appellant filed his motion to withdraw his plea of guilty. A hearing was held on this motion on December 10, 1943, which the court overruled, and on that date sentenced appellant to two years imprisonment in the State Penitentiary which was commuted to Algoa Farms Intermediate Reformatory.

The conclusive evidence shows that there were numerous conferences between the prosecuting attorney and appellant and various members of appellant's family. Appellant testified that he was nineteen years of age; that he could not read or write; that the prosecuting attorney told him "if he would plead guilty, he would get an easy parole;" and if the prosecuting attorney had not promised him a parole he would not have pleaded guilty. Appellant stated that he was charged with having sworn to a lie. Mose Hovis, his father, and Miss Gladys Hovis and Mrs. Porter Dorsey, his sisters, all testified to discussions that took place between them, the appellant, and the prosecuting attorney relative to the criminal charge pending against the appellant, and all testified the prosecuting attorney said if appellant would plead guilty he would be paroled. Mrs. Dorsey testified that the prosecuting attorney expressly told her if the appellant would plead guilty he would receive a parole.

On direct examination, the prosecuting attorney denied that he ever promised the appellant or members of his family a parole, or that he would recommend a parole. His explanation of the conferences was as follows: ". . . in view of the fact that he was a young man and never had been in trouble before more than likely, if he entered a plea of guilty, the Parole Officer would make a favorable report on his parole and, if he did, the Court would no doubt grant him a parole; that I never recommended a parole for anybody, but I wouldn't oppose a parole. I never opposed a parole, and I never have on a plea of guilty entered. I never have recommended a parole for anybody. I also called attention to the fact that he should let me know, because the State would be ready for trial. We had a nubber of witnesses, one of them in Kansas City would be necessary to be here at the trial; and that if he was paroled, if the Court granted him a parole, one of the conditions would be he should pay all of the costs, and that there was not any use for me subpoenaeing a lot of witnesses and running up a lot of costs, if he was going to enter a plea of guilty. Now, that all took place about last March, and Mr. Hovis and his mother came in and talked to me about it, and they just seemed to think that I could grant a parole, and I would tell them time and time again it was not within my power, and I talked and tried to get Mr. Kirkpatrick to explain to those folks I didn't have anything to do with a parole, that he had to enter a...