State v. Mau

• Decision Date: 18 March 1930
• Docket Number: 1600
• Citation: 41 Wyo. 365,285 P. 992
• Parties: STATE v. MAU [*]
• Court: Wyoming Supreme Court

285 P. 992

41 Wyo. 365

STATE v. MAU ^[*]

No. 1600

Supreme Court of Wyoming

March 18, 1930

APPEAL from District Court, Hot Springs County; EDGAR H. FOURT Judge.

Carl Mau was convicted of rape, and he appeals.

Reversed.

For the appellant there was a brief by M. C. Burk, of Riverton Wyoming, and oral argument by Mr. Burk.

It was error to require defendant to plead in the absence of his counsel; defendant was prevented from interposing objections to the information and was thus deprived of a constitutional right. Const., Art. 1, Sec. 10, and of rights conferred by statutes 7480-7481-7483-7487 C. S. Defendant was deprived of right to apply for a change of venue. 6423 C. S. Defendant was entitled to move to quash the information. McGinnis v. State, 16 Wyo. 72. Requiring defendant to plead in the absence of his counsel is reversible error. State v Moore, 60 P. 748; State v. Davis, 130 P. 962; Salina v. Cooper, 25 P. 233. The court erred in denying defendant's motion to require the prosecution to elect whether the State would stand upon the charge of statutory rape, or one of common law. State v. Lee, 56 P. 415. The court erroneously received hearsay evidence as to declarations made by the complaining witness. 16 C. J. 725. The defendant was entitled to a directed verdict in his favor. There was no corroboration of the prosecuting witness. 22 R. C. L. 1223; People v. Benson, 65 Am. Dec. 506. The information charged two distinct offenses in one county. The trial court apparently sought to jeopardize the rights of defendant by depriving him of rights under constitution and laws of the state.

On behalf of the State there was a brief by W. O. Wilson, Attorney General; J. A. Greenwood, Deputy Attorney General, and R. J. Jackson, Assistant Attorney General, and oral argument by Mr. Greenwood.

There was no violation of defendant's constitutional rights; the right to have counsel is a mere privilege guaranteed by the constitution, which may be waived, and was waived by defendant in entering a plea of not guilty. State v. Yoes, 68 S.E. 181; Gutierez v. State, 47 S.W. 372; 8 R. C. L. 84; State v. McWhinney, 134 P. 632; People v. Fegueroa, 66 P. 202; People v. Stein, 137 P. 271. The arraignment of defendant on the day following service of a copy of information was not a violation of any right. Sec. 7481 C. S. directs the court to allow accused a reasonable time to examine the indictment or information. Where it is unnecessary to appoint counsel for an indigent prisoner, Sec. 7481 C. S. should not be considered. A motion to quash, plea in abatement or demurrer would have availed defendant nothing, as he would ultimately have been required to plead to the merits. No such evidence was received. The instructions given by the court fairly stated the law applicable to the case. There is no rule in this state requiring corroboration of a prosecutrix upon a charge of rape. There was a question of fact established by the evidence that was proper to submit to the jury, therefor it was not error to deny defendant's motion for a directed verdict.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The defendant appeals from a judgment following a verdict finding him guilty of rape. The information, based on Section 7080, C. S. 1920, charged that Carl Mou, on January 19, 1929, at Hot Springs County, Wyoming, "did wilfully, maliciously, unlawfully, forcibly and feloniously have carnal knowledge, and did then and there ravish a female child one Norma Cox then and, there being under the age of eighteen years and of the age of thirteen years." The defendant's name is Carl Mau, and the girl's name is Naomi Cox, but no question has been raised as to the mistake in alleging these names.

The prosecution was commenced by the filing of a complaint with a justice of the peace on February 6, 1929. The preliminary examination was had on that day, and the defendant held to answer the charge in the District Court. He failed to furnish bail as fixed by the justice, and was committed to jail. The next day the information was filed in the District Court and, at 2:45 o'clock in the afternoon, a certified copy of the information was delivered to the defendant. The following day, February 8, defendant was arraigned in the District Court and pleaded not guilty. Some of the affidavits in the record give February 9 as the date of the arraignment, but we accept the date as stated in the endorsement on the information, that being the only record of it. After the plea the case was set for trial on February 19.

It is contended that the trial court erred in denying defendant's motion for leave to withdraw the plea of not guilty. The motion was in writing, filed February 15, 1929, and supported by affidavits of defendant and his attorney. The affidavits show the following facts that do not seem to be contradicted by anything in the record.

The defendant, to the knowledge of both the county attorney and the judge of the District Court, was represented by M. C. Burk, an attorney residing at Riverton some sixty miles from Thermopolis where the case was pending. Mr. Burk was present representing the defendant at the preliminary examination at Thermopolis on February 6. The judge of the District Court was also at Thermopolis on that day, and the attorney's affidavit alleges that the judge then told the attorney that the judge was leaving that evening for Lander and did not intend to return to Thermopolis until the following week, when he would take up any matters the attorney cared to present. The attorney alleges that, resting on that assurance, he returned on the evening of February 6 to his home at Riverton, and remained there until February 11, which was Monday of the following week. On that day the judge was at Lander, and was there met by the attorney who wanted to confer about the hearing of an application to have defendant's bail reduced. The attorney was then by the judge informed of the filing of the information in the District Court at Thermopolis, of defendant's plea of not guilty and of the setting of the case for trial--facts of which the attorney had no previous notice. The next day, February 12, was a holiday. On the 13th the attorney filed and presented to the court at Thermopolis defendant's affidavits for change of judge and change of venue. On being told by the judge that the changes asked could not be granted because the affidavits were filed too late, the attorney filed the motion for leave to withdraw the plea of not guilty for the purpose of enabling the defendant to have a hearing on his affidavits for change of judge and venue, and, also, on a motion to quash the information. The defendant, in his affidavit in support of the motion to withdraw his plea, alleges that he pleaded without having consulted with his attorney about entering the plea, and without knowing that the plea would waive any right.

We assume that the facts in reference to the taking of defendant's plea on February 8 were substantially as claimed by the state, and stated by the judge as follows:

"I want to say that the defendant was brought into court, the court asked him if he had counsel, and he said he had. He was asked if he had conferred with counsel with reference to this charge and he said that he had. The information was read to him and he said he had a copy of it served on him and had conferred with counsel and was ready to plead in this case. He informed the court that Mr. M. C. Burk was his attorney and thereupon he was asked by the court what his plea was to the information and he said 'not guilty,' and the court directed that the plea be endorsed upon the information and remanded the defendant to the custody of the sheriff."

Under our practice, an affidavit for change of venue or change of judge must be filed not later than the succeeding day after the plea of not guilty has been entered and endorsed on the information. C. S. 1920, Sec. 6423. The plea waives all defects that might have been excepted to by motion to quash. C. S. 1920, Sec. 7487.

We think leave to withdraw the plea of not guilty should have been granted. It seems to have been denied on the theory that the plea should stand unless it were shown that the court had no right to take it. The defendant contended in the trial court, and continues to contend here, that the taking of the plea in the shown circumstances was a denial of defendant's constitutional right to defend by counsel. He cites State v. Moore, 61 Kan. 732, 60 P. 748, which seems to support the contention. That decision goes further perhaps than we should care to go in a similar case, and certainly further than we need go in the case at bar.

We may concede that the defendant was not denied any fundamental right by being arraigned in the absence of his counsel. See, James v. State, 27 Wyo. 378, 384, 196 P. 1045. In the case just cited the defendant was not represented by counsel at the time of the arraignment. We held that the taking of the plea was not error, and that the plea waived defects that should have been raised by motion to quash or plea in abatement. We said, however, we had no doubt that a seasonable request for leave to withdraw the plea would have been granted in order to give the defendant an opportunity to raise preliminary questions.

Though in taking defendant's plea, no fundamental right was denied him, we think the interests of justice required the granting of his motion for leave to withdraw the plea. While it is generally held that the granting or denying of such a motion is discretionary with the trial judge (16 C. J. 399), and the cases we have examined show that it is not often that the exercise of the discretion will be interfered with by the appellate court, we have seen...