State v. McDonnell
| Decision Date | 08 January 1926 |
| Docket Number | No. 24821.,No. 24820.,24820.,24821. |
| Citation | 206 N.W. 952,165 Minn. 423 |
| Parties | STATE v. McDONNELL. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; E. J. Kenny, Judge.
John J. McDonnell was convicted of larceny in the first degree under two informations, and he appeals. Affirmed.
John Brown, of Duluth, for appellant.
C. L. Hilton, Atty. Gen., and Mason M. Forbes, of Duluth, for the State.
The defendant was convicted on January 8, 1925, of grand larceny in the first degree on his plea of guilty to an information filed by the county attorney charging him with taking a sum of money in the nighttime from the person of one Alverson, and was sentenced to the reformatory at St. Cloud. On the same day he was convicted of a like crime on his plea of guilty to an information filed by the county attorney charging him with taking a sum of money in the nighttime from another person, and was sentenced to the state prison, the serving of the sentence to commence upon the expiration of his term at the reformatory.
The defendant moved to set aside the judgments of conviction and his pleas of guilty. The motions were denied, and he appeals from the orders denying them and from the judgments of conviction.
The claims of defendant's counsel, argued and briefed with great thoroughness, are fairly comprehended in three contentions:
(1) That under G. S. 1923, § 10667, relative to informations, a plea of guilty cannot be taken by the court, unless the defendant is represented by counsel, procured by himself or appointed by the court, and that, the defendant not being represented by counsel, his convictions were invalid.
(2) That, if the first contention is not sustained, then he was not sufficiently informed of his right to counsel, as required by G. S. 1923, § 10678.
(3) That, if neither the first nor the second contention is sustained, then the court abused its discretion in refusing him permission to withdraw his pleas of guilty.
1. Section 10667, G. S. 1923, provides for the filing of an information against one charged with crime "upon the application of the prisoner in writing, stating that he desires to plead guilty," etc. There is this proviso:
"Provided, that no plea of guilty shall be received or entered under the provisions of this section, unless the person charged in the indictment or information be represented by competent counsel, and in case he shall have no counsel the court shall appoint competent counsel to appear for such accused, * * * and the court shall not accept such plea of guilty or pass sentence thereon unless it is fully satisfied that the accused has had his action properly considered and advised by competent counsel."
The information was not filed against the defendant upon his application under section 10667. It was filed under sections 10664-10666 on the initiative of the county attorney. These sections were analyzed and construed in State v. Keeney, 153 Minn. 153, 189 N. W. 1023. It was held that they gave the county attorney authority to proceed by information on his own initiative against a defendant bound over to the district court, though such defendant made no application as he might under section 10667. The quoted proviso of section 10667 is without application. It is in terms confined to pleas of guilty under that section; and reasons are apparent why the Legislature should choose to have it so.
2. Section 10678, G. S. 1923, provides:
"If the defendant shall appear for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desires the aid of counsel."
When the case was called this occurred:
After a statement by the county attorney, there was an extended examination by the court, and upon its conclusion sentence to the reformatory was imposed.
Proceedings upon the second information followed immediately, if we interpret the record correctly, and this occurred:
Sentence to the state prison was then imposed.
The statute was not followed formally. We feel that it is better that the court inform a defendant, in precise terms, that he is entitled to counsel before arraignment, with such explanation as the particular case may suggest. The Constitution gives him the right "to have the assistance of counsel in his defense." Const. art. 1, § 6. And, if by reason of poverty he cannot employ counsel, the court appoints. G. S. 1923, § 9957.
The omission to give the...
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