State v. Jensen

• Decision Date: 02 July 1929
• Docket Number: 4791
• Citation: 279 P. 506,74 Utah 299
• Court: Utah Supreme Court
• Parties: STATE v. JENSEN

279 P. 506

74 Utah 299

STATE v. JENSEN

No.4791

Supreme Court of Utah

July 2, 1929

Appeal from District Court, Sixth District, Sevier County; Nephi J Bates, Judge.

H. T Jensen was convicted of larceny, and he appeals.

REVERSED, and case remanded for a new trial.

Clarence Baird, of Salt Lake City, and Erickson & Erickson, of Richfield, for appellant.

George P. Parker, Atty. Gen., and Lawrence A. Miner, Asst. Atty Gen., for the State.

STRAUP, J. CHERRY, C. J., and Elias HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

STRAUP, J.

The defendant was convicted of the offense of larceny, and appeals. When arraigned on the information, he entered a plea of guilty. Up to that time he had not had the benefit of counsel and had not consulted an attorney. Later he consulted counsel, and upon such consultation his counsel on his behalf served and filed a motion to withdraw the plea of guilty and to substitute a plea of not guilty. The motion was supported by affidavit that the defendant was induced by the sheriff to enter a plea of guilty on the promise that sentence would be suspended. The court granted the motion and permitted the plea of guilty to be withdrawn, and a plea of not guilty to be substituted, whereupon the case was set for trial, which resulted in a verdict of guilty.

The state gave evidence to show that the defendant with two others stole several sets of harness, the subject of the charged larceny; that one set was sold by the defendant, another set by one of the accomplices, one set thrown in the river by the defendant, and inconsistent statements made by him as to the source of his possession. The defendant claimed and testified that he was told and believed that the harness belonged to one of the accomplices, that he at his request went with him to get the harness, sold one set at his request, believing the harness belonged to the accomplice, but later, learning that the accomplice was not the owner of the harness and had no right to take it, the defendant threw one set in the river.

The defendant lived in Salt Lake City. Among other things he testified that he received a letter from David Bird, one of the accomplices, living at Salina, where the offense was committed, requesting the defendant to come to Salina to get the harness which the defendant, as he testified, believed belonged to Bird, and that he later and after his arrest had a conversation with Bird in the presence of the sheriff respecting the letter. Thereupon the sheriff in rebuttal was called by the state and was asked by the prosecution:

"Q. You heard the testimony of Jack Jensen, defendant in this case? A. Yes, Sir.

"Q. I call your attention particularly to that portion of his testimony wherein he says, when asked by counsel in reference to a conversation that he had in your presence with one David Bird in reference to a written communication. I will ask you if you were present at that time and place. A. I came in while they were talking about it.

"Q. You may relate what that conversation was. A. Prior to this Mr. Jensen had told me the story, that he told on the stand here, that was not in the presence of Dave Bird, and I had told Dave about what he had said, and Dave, of course, denied it. And when I came into the office--

"Mr. Baird (counsel for the defendant): Was the defendant present at this conversation? A. Yes, sir. When I came into the office, I and Dave Bird and Jensen were talking about this; and Mr. Bird asked me, he says, 'Now what did he tell you in regard to this letter that was written up there to Salt Lake by me;' and I told him; and Dave says, 'Is that a fact?' And Jensen says, 'I didn't tell you that; if I did, I told you falsehood or untruth; but I think I didn't tell you anything about anything that was written up there, that was written about these harnesses up there.' That was in my office, the same day that he pleaded guilty in this case.

"Mr. Baird: I object to that as incompetent, irrelevant and immaterial, that last part of the answer, not responsive, and no part of this case, and move to strike it as not responsive and improper to go to the jury.

"Court: Objection overruled.

"Mr. Baird: Note our exception."

Such ruling presents the principal question for review. The state in its brief puts the proposition thus:

"It appears in this case that the defendant, Jensen, had first pleaded guilty to the charge made in the information and then, under section 8900 of the Compiled Laws of Utah, 1917, he had been permitted to withdraw this plea and enter a plea of not guilty. The defendant now complains of the failure of the court to strike the reference made by the witness Fairbanks (the sheriff) to the defendant having pleaded guilty."

The section of the statute referred to provides that:

"The court may at any time before judgment upon a plea of guilty permit it to be withdrawn and a plea of not guilty substituted."

There is a conflict in the authorities as to whether a withdrawn plea of guilty may be given in evidence against the accused. The question in a comparatively recent case, in 1926, was considered by the Supreme Court of the United States in the case of Kercheval v. U. S., 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. It was there held that by the weight of authority such evidence was inadmissible. In its opinion that court, through Mr. Justice Butler, said:

"In support of the rulings below holding the evidence admissible!, the United States cites Commonwealth v Ervine, 8 Dana 30; People v. Jacobs, 165 A.D. 721, 151 N.Y.S. 522; State v. Carta 90 Conn. 79, 96 A. 411, L. R. A. 1916E, 634; People v. Boyd, 67 Cal.App. 292, 302, 227 P. 783; and People v. Steinmetz, 240 N.Y.411, 148 N.E. 597. The arguments for admissibility to be gleaned from these cases are that the introduction of the withdrawn plea shows conduct inconsistent with the claim of innocence at the trial; that the plea is a statement of guilt, having the same effect as if made out of court; that it is received on the principle which permits a confession of the accused in a lower court to be shown against him at his trial in the higher court; that it is not received as conclusive, and, like an extrajudicial confession, it is not sufficient without other evidence of the corpus delicti. It is sometimes likened to prior testimony of the defendant making in favor of the prosecution.

"Other decisions support the petitioner's contention that a plea of guilty, withdrawn by leave of court, is not admissible on the trial of the issue arising on the substituted plea of not guilty. Heim v. United States, 47 App. D.C. 485, L. R. A. 1918E, 87; State v. Meyers, 99 Mo. 107, 119, 12 S.W. 516; People v. Ryan, 82 Cal. 617, 23 P. 121; Heath v. State 214 P. 1091. And see White v. State, 51 Ga. 285, 289; Green v. State, 40 Fla. 474, 478, 24 So. 537. We think that contention is sound. A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted, unless made voluntarily, after proper advice, and with full understanding of the consequences. When one so pleads, he may be held bound. United States v. Bayaud (C. C.) 23 F. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained, or given through ignorance, fear, or inadvertence. Such an application does not involve any question of guilt or innocence. Commonwealth v. Crapo, 212 Mass. 209, 98 N.E. 702. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial, if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593; State v. Maresca, 85 Conn. 509, 83 A. 635; State v. Nicholas, 46 Mont. 470, 472, 128 P. 543; State v. Stephens, 71 Mo. 535; People v. McCrory, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720, 37 So. 619; Bishop's New Criminal Procedure, § 747.

"The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. Heim v. United States, supra, 493 [of 47 App. D. C.]. The conflict was not avoided by the court's charge. Giving to the withdrawn plea any weight is in principle...