State v. Kellar

• Citation: 55 S.W.2d 969,332 Mo. 62
• Decision Date: 31 December 1932
• Docket Number: 32415
• Parties: The State v. James William Kellar, alias Charles Harold Campbell, Appellant
• Court: United States State Supreme Court of Missouri

55 S.W.2d 969

332 Mo. 62

The State v. James William Kellar, alias Charles Harold Campbell, Appellant

No. 32415

Supreme Court of Missouri

December 31, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Affirmed.

James S. McClellan for appellant.

(1) The trial court erred in refusing to allow appellant, as a matter of right, to withdraw his plea of guilty on application duly made before judgment had been pronounced against him. (a) At the time appellant presented his written and oral motions to withdraw his plea of guilty no judgment had been pronounced against him. State v. Blanchard, 21 S.W.2d 758; State v. Smith, 105 S.W. 598, 207 Mo. 24; State v. Seats, 21 S.W.2d 758; State v. Vaughan, 71 Conn. 457, 42 A. 640; Manke v. People, 74 N.Y. 415; Mathews v. Swatts, 16 Ga.App. 208, 84 S.E. 980. (b) The defendant in a criminal case may, as a matter of right withdraw his plea of guilty at any time before final judgment has been pronounced thereon. State v. Reppley, 278 Mo. 333, 213 S.W. 477; Bearden v. State, 79 S.E. 79 13 Ga.App. 264; Polston v. State, 83 S.E. 1101, 15 Ga.App. 632; Nobles v. State, 86 S.E. 1073, 17 Ga.App. 382; Alexander v. State, 152 S.W. 436, 69 Tex. Cr. 23; State v. Hortman, 97 N.W. 981, 122 Iowa 104; Griffin v. State, 77 S.E. 1080; Woodward v. State, 78 S.E. 1009, 13 Ga.App. 130; Williams v. Commonwealth, 80 S.W. 173, 25 Ky. L. Rep. 1009. (2) The trial court erred in refusing to grant appellant leave to withdraw his plea of guilty. State v. Stephens, 71 Mo. 535; State v. Dale, 222 S.W. 763, 282 Mo. 663; State v. Abel, 8 S.W.2d 55; Moody v. Riechow, 38 Wash. 303, 80 P. 461; Krolage v. People, 224 Ill. 456, 79 N.E. 570; State v. Ferranto, 148 N.E. 362; Deloach v. State, 27 So. 618; Brown v. State, 109 So. 627; Mullen v. State, 230 P. 285; Howington v. State, 225 P. 933.

Stratton Shartel, Attorney-General, for respondent; Lieutellus Cunningham of counsel.

(1) The plea of guilty takes the place of evidence on every fact necessary to be proven if a trial were had. 8 R. C. L. p. 116, par. 85; Dusenberg v. Rudolph, 30 S.W.2d 94. (a) The court had authority to fix the same punishment as could have been assessed by a jury on a trial of the case. Ex parte Morgan, 280 S.W. 1038. (b) It was not error for the court to accept the plea of guilty and fix the punishment at death by hanging. State v. Williams, 6 S.W.2d 915. (c) It was not error for the court to refuse to allow the defendant to withdraw his plea of guilty when the defendant had not been misled into making the plea. State v. Richardson, 98 Mo. 564. (d) The extent of the punishment to be assessed upon a plea of guilty being entered is solely for the determination of the trial court. State v. Sublett, 4 S.W.2d 463, 318 Mo. 1142. (2) While allocution is not required before passing sentence where a plea of guilty is entered, yet no right of the defendant was prejudiced by granting him allocution. State v. Rogers, 285 S.W. 976. (3) The court did not lose jurisdiction of the case by accepting the plea of guilty and assessing the punishment and deferring judgment and sentence to a later date. There is no final disposition of a case until there is a final judgment. State v. Watson, 95 Mo. 411; State v. Schierhoff, 103 Mo. 47. The passing of sentence was deferred at the instance of defendant through his attorney. It was not error, but in no event can a defendant take advantage of an error if committed at his instance. Sec. 3563, R. S. 1929; State v. Hudson, 285 S.W. 733.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Defendant was charged by information in the Circuit Court of St. Louis County with the crime of murder in the first degree for the killing in said county of one Etta Sauer. Upon arraignment he entered a plea of not guilty. Later he withdrew that plea and entered a plea of guilty. The court assessed the death penalty. Defendant filed motion asking leave to withdraw his plea of guilty and plead not guilty, which after a hearing the court denied. Defendant was then duly sentenced to death upon his plea of guilty. There is no error in the record proper. Defendant appeals, charging error in the court's refusal to permit withdrawal of the plea of guilty. Such action of the court is the only matter presented for review on this appeal.

The information charges the murder to have been committed January 4, 1932, by striking and beating said Etta Sauer on the head and body with a piece of iron pipe. The information was filed January 16, 1932. Defendant was arraigned and entered a plea of not guilty on January 22, and the cause was set for trial for March 21. On February 29, defendant, through his attorney, made application to the court for the appointment of a commission of physicians or alienists to examine defendant as to his sanity. The court refused to make such appointment but on March 20, defendant was examined by two alienists, one chosen by himself and one by the State. This examination will be referred to later.

On March 21, the day the cause was set for trial, defendant being present with his attorney, the State answered ready for trial. Defendant thereupon, through his counsel, made known to the court that he desired to withdraw his plea of not guilty and enter a plea of guilty. A conference was then held in the judge's chambers between the judge defendant's attorney and three attorneys representing the State. After this conference the judge resumed the bench, defendant withdrew his plea of not guilty and entered a plea of guilty as charged in the information. The court announced that the sentence "will be death by hanging," but did not then formally pronounce sentence. The court asked defendant if he had any reason to show why sentence should not then be pronounced. Defendant's counsel replied that he thought there was justification for asking the clemency of the court. He stated further: "By the purview of this case, Your Honor, it does look as though the defendant were guilty of premeditated willful murder. As I have already told Your Honor, there are circumstances in this case that I do believe suggest the use and the exercise of clemency by this court." The court replied: "That may be taken up with the court later, at some future date. Sentence will be deferred." Sentence was thereupon deferred for two weeks.

On March 31, defendant filed his motion to withdraw his plea of guilty, which motion, omitting caption, is as follows:

"Comes now James William Kellar, defendant in the above entitled cause and through his attorney moves this court to permit said defendant to withdraw his plea of guilty, heretofore entered herein, and to have a trial upon the issues, for the following reasons, to-wit:

"1. That said defendant at the time he entered his plea of guilty was aware of the hostile public sentiment that had been directed against him by reason of the circumstances surrounding the crime, with the commission of which he is charged in the information, and believed he could not obtain a fair and impartial trial by reason of said public opinion and that acting under the misapprehension of the legal consequences attendant thereon he entered his plea of guilty in said cause.

"2. That said defendant was not informed by this court at the time said plea of guilty was entered of the legal consequences that might be attendant upon the entering of said plea.

"Wherefore, defendant prays this court to permit him to withdraw his plea of guilty heretofore entered herein and to stand trial on the issues of said cause."

Said motion was heard by the court on April 2. Defendant did not testify nor present any affidavit. The only evidence offered by him in support of the motion was the testimony of his attorney, Mr McClellan, who testified in chief as follows:

"My name is James McClellan, and I am attorney for James Kellar in this case. On March 21, 1932, I was in the chambers of Judge McElhinney discussing the matter of entering a plea of guilty in this case. At no time was I advised that the probable or possible legal consequences of a plea of guilty would result in a sentence of death."

On cross-examination he testified in substance: That he was a practicing lawyer, had been retained to represent defendant in this case and had represented him as his attorney for a month or more before the plea of guilty was entered; that on February 9 (29?), he had made application for the appointment of a commission to examine the defendant as to sanity, which was denied; that defendant was examined as to his sanity on March 20, 1932, by Dr. Unterburg, Chief of Staff of the Alexian Brothers Hospital and Dr. Francis Barnes, an alienist of St. Louis, in the presence of witness and others, the examination lasting about three hours, Dr. Unterburg having been selected by the witness and Dr. Barnes by the State. The State offered to prove by the witness that both doctors found the defendant to be sane. The defendant objected, his counsel stating: "I do not see any purpose in the admission of such testimony as that. I am not making any defense here on insanity whatever. I am asking to be allowed to withdraw the plea of guilty." The court sustained the objection.

Proceeding witness testified that when the case was called on March 21, the State answered ready and witness, as defendant's attorney, informed the court that defendant desired to plead guilty; that he, McClellan, then knew that the punishment prescribed by statute for first degree murder was either life imprisonment or death by hanging; that the court thereupon said he would "take up the matter" later and that after the docket was called that morning a "consultation" took place in the judge's chambers, there being present Messrs. Ziercher, Noble and...