State v. Lewis

• Decision Date: 25 November 1924
• Citation: 230 P. 543,113 Or. 359
• Parties: STATE v. LEWIS.
• Court: Oregon Supreme Court

230 P. 543

113 Or. 359

STATE v. LEWIS.

Supreme Court of Oregon

November 25, 1924

Department No. 1.

Appeal from Circuit Court, Multnomah County; L. P. Hewitt, Judge.

James Lewis was convicted of rape, and he appeals. Affirmed.

C. M. Idleman, of Portland, for appellant.

Jay H Stockman, Deputy Dist. Atty., of Portland (Stanley Myers Dist. Atty., of Portland, on the brief), for the State.

RAND J.

The defendant was indicted, charged with the crime of rape upon a female child under the age of 16 years. To this indictment he first entered a plea of not guilty. Subsequently he withdrew that plea and interposed a plea of guilty, and was sentenced to imprisonment in the Oregon state penitentiary for a term of not to exceed five years. This appeal is from that sentence. No objection is made to the sufficiency of the indictment.

The state denies the right of a defendant to appeal from a judgment entered on a plea of guilty, and upon that ground disputes the right of this defendant to appeal in this action. That appeals are statutory and that the right of appeal does not exist in a given case, unless the statute gives that right, has been so often and uniformly held by this court that it requires no citation for its support.

Section 1606, Or. L., provides that:

"An appeal to the supreme court may be taken by the defendant from a judgment on a conviction in a circuit court * * *" Section 1500, Or. L., permits a defendant, in a criminal action, to enter a plea of guilty, and, unless the defendant is a corporation, "a plea * * * must in all cases be put in by the defendant in person in open court." Section 1502, Or. L.

That the words "judgment on a conviction," as used in section 1606, defining judgments from which appeals in criminal cases may be taken, include judgments entered on a plea of guilty, we think is obvious; for, where a defendant in a criminal action pleads not guilty or pleads a former conviction or acquittal, an issue of fact arises. Section 1509, Or. L. But where a defendant enters a plea of guilty no issue of fact can arise, since by pleading guilty of the crime charged in the indictment the defendant admits every fact alleged in the indictment. A plea of guilty is a confession of guilt and is equivalent to a conviction, and leaves nothing for a court to do, except to pronounce sentence, the same as it would be required to do upon a verdict of guilty. "Where the statute permits the plea of guilty and such a plea is accepted and entered by the court in a criminal case, it is the highest kind of conviction of which the case admits." 16 C.J. 403, note "c."

But where an indictment charges a defendant with the commission of acts not made criminal by statute, or fails to state facts sufficient to constitute a crime, or where the court has no jurisdiction of the offense charged, and the court proceeds as if there were no such defects, or where, in pronouncing judgment, the court imposes a sentence in excess of that provided for by statute, a legal wrong results to the defendant, which, if it could not be corrected upon appeal, would leave the defendant remediless. Questions thus arising are questions of law, and not of fact. Section 1606 was intended to give a defendant a right to have an error of law of that character corrected. The right to have such error corrected is not impaired by a plea of guilty. The effect of a plea of guilty is stated in 16 C.J. at page 402, as follows:

"A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement. But it does not cure jurisdictional defects in an indictment; and if the latter is insufficient, from the standpoint of failing either to confer jurisdiction or to set forth facts sufficient to constitute a public offense, the plea of guilty confesses nothing."

The objection that the defendant cannot appeal because of his plea of guilty cannot be sustained.

After the rendition of the judgment, the defendant filed a motion, supported by affidavits, to vacate and set aside the judgment and for a new trial, but no motion in arrest of judgment was filed, nor did the motion filed contain a specific request for permission to withdraw the plea of guilty. A motion for a new trial may be based upon any of the grounds mentioned in section 1491, Or. L. None of the facts alleged in the affidavits have any relation to any of the matters referred to in said section; nor do the facts alleged constitute any ground upon which a motion in arrest of judgment can be based. Therefore the motion, if any consideration is to be given to it, must be treated as a motion for permission to withdraw defendant's plea of guilty.

The only statute which provides for the withdrawal of a plea of guilty in a criminal action is section 1503, Or. L., which 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 therefor."

Whether a plea of guilty, before judgment is pronounced thereon, may be withdrawn and a plea of not guilty be substituted therefor rests in the sound judicial discretion of the trial court, and its decision upon that question will not be disturbed, unless there has been an abuse of discretion. Curran v. State, 53 Or. 154, 99 P. 420. Section 1503 has no application to the withdrawal of a plea of guilty after judgment thereon has been pronounced, unless, by implication, it excludes it. Assuming, without deciding, that exceptional cases may arise where, in the interest of justice, a defendant, after judgment, ought to be permitted to withdraw a plea of guilty, nevertheless, for a much stronger reason a decision of the trial court denying such motion should not be disturbed, unless it clearly appeared that there had been an abuse of discretion. Whether a plea of guilty should be permitted to be withdrawn and a plea of not guilty entered rests within the sound discretion of the court. It should not be granted, unless the ends of justice require that it should be done, and, unless it clearly appears that the court has abused its discretion in that respect, the action of the court in denying the request cannot be reviewed. The only question presented upon this record is whether there has been an abuse of discretion.

Discretion is the power exercised by courts to determine questions to which no strict rule of law is applicable, but which, from their nature and the circumstances of the case, are controlled by the personal judgment of the court. 1 Bouvier's Law Dict. p. 884. It cannot be exercised where a strict rule of law is applicable, as the term "discretion" implies the absence of any such rule. Where there is a clearly-defined and well-settled applicable rule of law, the courts are bound to enforce the rule, and discretion is at an end. Discretion, however, is not an arbitrary and unrestricted power, but must be exercised according to fixed and settled rules.

Dean Pound, in his Readings on the History and System of the Common Law, at page 19, says:

"Four propositions may be laid down with reference to the exercise of discretion: (1) Whether or not a matter is one for law or for discretion is settled by law, and the court has no power to put it in the one category or the other at pleasure. A court has no discretion to apply the law or not as it sees fit. (2) Where discretion is conferred, it must really be exercised as such; the court cannot act oppressively or arbitrarily under pretense of exercising discretion. Such arbitrary or oppressive action under color of exercising discretion is called abuse of discretion. (3) If discretion reposed in a court or judge is in fact exercised as such, the manner of its exercise will not be reviewed. (4) But, if the

...