State v. McNeal

• Decision Date: 05 June 1924
• Docket Number: 25244
• Parties: THE STATE v. WHITLEY McNEAL, Appellant
• Court: Missouri Supreme Court

262 S.W. 1025

304 Mo. 119

THE STATE v. WHITLEY McNEAL, Appellant

No. 25244

Supreme Court of Missouri

June 5, 1924

Appeal from Ralls Circuit Court; Hon. Charles T. Hayes Judge.

Reversed.

Ely & Hulse and E. L. Alford for appellant.

In overruling the defendant's motion to quash the information and his plea in abatement of the prosecution of this cause the trial court committed reversible error. Sunday v. State, 14 Mo. 417; State v Allen, 174 Mo. 689; 16 C. J. 399, 400, 414; State v Taylor, 57 W.Va. 228; State v. Pine, 56 W.Va. 1; Gibbons v. Territory, 5 Okl. 212; Brannigan v. People, 3 Utah, 488; Nordan v. State, 143 Ala. 13, 39; Thayer v. State, 138 Ala. 39; Hughes v. State, 17 Ga.App. 611; State v. Snyder, 182 Mo. 462.

Jesse W. Barrett, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent; Rendlen & White of counsel.

(1) A preliminary examination is not a criminal prosecution but is merely a preliminary inquiry for the purpose of determining to the satisfaction of the justice that the crime alleged in the complaint was committed, and whether there is probable cause to believe the accused guilty of said crime. State v. Jeffries, 210 Mo. 302, 14 Ann. Cas. 524; State v. Flannery, 263 Mo. 579; State ex rel. v. Nast, 209 Mo. 708; Ex parte Bedford, 106 Mo. 616; 16 C. J. 313; State v. Ferguson, 278 Mo. 119. (2) The preliminary examination may be waived, and is waived if the accused, at the time of his arraignment, pleads the general issue, as was done in this case. Ex parte McLaughlin, 210 Mo. 657; State v. Dooms, 280 Mo. 84, 93; 16 C. J. 310, sec. 565; State v. Ferguson, 278 Mo. 119; State v. Langford, 293 Mo. 436, 441; State v. Rozell, 225 S.W. 931, 16 A. L. R. 400. (a) A waiver of a preliminary examination, whether express or by implication, estops an accused from subsequently claiming his right to be discharged on the ground that no preliminary was accorded to him. (b) The trial judge twice ruled that the defendant had waived any alleged lack of preliminary hearing. (c) Alleged lack of preliminary is a mere subterfuge. State v. Flannery, 263 Mo. 288. (d) The only intimation "of well defined injury to accused" concerning the preliminary, is that defendant was unable to put it off to a time when the Statute of Limitation would have prevented a trial upon the charge at all. All witnesses defendant used at the trial were at preliminary save four character witnesses. State v. Flannery, 263 Mo. 579. (e) In giving bond without objection, which defendant did readily on being bound over by the magistrate, he waived any alleged lack of or irregularity in the preliminary. State v. Flannery, 263 Mo. 591; Cunningham v. State, 116 Ind. 433; State v. Ritty, 23 Ohio St. 562; Nowak v. Waller, 56 Hun, 642, 10 N.Y.S. 199, 132 N.Y. 590; Hopkins v. State, 5 Ga.App. 700; Lowry v. State, 5 Ga.App. 701; 16 C. J. 318, sec. 566; State v. Pay, Ann. Cas. 1917E, p. 173, note p. 183.

David E. Blair, P. J. Walker, J., concurs; White, J., dissents in separate opinion.

OPINION

BLAIR

Defendant was convicted of arson in the fourth degree, was sentenced to imprisonment in the penitentiary for a term of two years, and has appealed.

On November 6, 1922, defendant appeared in the circuit court in person and by counsel and waived the reading of the information and entered a plea of not guilty. Thereafter, on November 23, 1922, the case came on for trial and the prosecuting attorney asked and was given leave to amend the information in particulars which are not here important and also to indorse names of certain witnesses thereon. Thereupon the following occurred:

"Mr. Hulse: Defendant withdraws plea heretofore entered and desires leave to file motion to quash and plea in abatement.

"Court: Leave is granted.

"Mr. Hulse reads motion to quash and plea in abatement."

The motion and plea in abatement, among other grounds, rested on the proposition that defendant had not been accorded a preliminary examination as provided by Chapter 25, Article 5, Revised Statutes 1919. Thereupon the following occurred:

"Court: Hear you on the second ground.

"Mr. Hulse: Think entitled to be heard on all grounds.

"Court: You waived that by making plea.

"Mr. Hulse: If we withdraw the plea by leave of court which has been done we -- have authority, if withdraw the plea --

"Court: Set aside the order granting leave, it is a waiver -- set aside the order granting leave to file motion on that point; my view is, when enter plea of not guilty and had it set for trial and jury ordered to be here and try the case you had waived that point. If I had known when you asked for leave to file this motion that it contemplated that point I would not have given you leave because you had waived it.

"Mr. Hulse: Authorities hold to this effect; that if we proceed to trial we waive it, that is as far as any case has gone, if proceed to trial and answer not guilty and so through the trial you cannot thereafter be heard to complain, can't raise it.

"Court: If you show me authority that holds you have not waived it by entering your plea, I will change this ruling freely and willingly, I have been under the impression entering plea is waiver.

"Mr. Hulse: Here is another matter perhaps not occurred to the court; an amended information has been filed by the State and there has been no plea whatever made to that amended information; and we are certainly entitled now to raise any question that could ever have been raised in this case -- information amended in material respect.

"Court: That makes a difference, order last made set aside. You are granted the leave to file it. Motion to quash and plea in abatement is for hearing on all grounds assigned.

"Mr. Rendlen: I don't understand --

"Court: The motion to quash and plea in abatement is for hearing on all grounds assigned."

Evidence was then introduced upon said motion to quash and plea in abatement. The trial judge announced his opinion that defendant had not been accorded such preliminary examination, but held that he had waived his right to such preliminary examination and said:

"Now the defendant entered a plea of not guilty on the day on which this case -- the day he was arraigned, first day of the term -- both he and counsel well knew at that time what transpired in the court of the Justice of the Peace Miller; they knew whether or not he had been accorded a preliminary examination such as the law entitled him to, his counsel well knew it; with that knowledge in mind the counsel and the defendant did not at that time refuse to plead to the information and ask leave to file motion to quash or plea in abatement, but on the contrary, entered a plea of not guilty, thus tender as law says, the issue, by so doing he waived this right to preliminary examination; that is a primary right that is accorded him if he sees fit to take advantage of it at the proper time and in the proper way; he waived it by tendering the plea of not guilty. That was the impression the court had when he read the plea in abatement. I have investigated the authorities since, and I am still of that opinion. Overrule the plea in abatement."

It must first be determined whether the trial court erred in holding that defendant waived preliminary examination under the circumstances above detailed. It is conceded by defendant that, when a defendant pleads to an indictment or information, he waives the right to a preliminary examination. With full knowledge that the plea in abatement was based upon the contention that defendant had not been accorded a preliminary examination, the trial judge granted defendant leave to withdraw his plea of not guilty and to file said motion to quash and plea in abatement. It was with such knowledge that the trial judge said: "The motion to quash and plea in abatement is for hearing on all grounds assigned."

It is the general rule that a defendant is not entitled, as a matter of right, to withdraw a plea duly made to an indictment or information for the purpose of filing a plea in abatement or interposing other objections which should have been raised before entering his plea. [16 C. J. 396; State v. Allen, 174 Mo. 689; Sunday v. State, 14 Mo. 417.] It is said in 16 Corpus Juris, at page 397, that "the withdrawal of a plea, being a 'matter of favor,' the court has the right in its discretion to couple with its leave such conditions as it may deem proper." [See also Mills v. State, 76 Md. 274.]

The trial judge undoubtedly could have denied outright defendant's request for permission to withdraw his plea or could have permitted him to withdraw it upon the condition that he could not attack the proceedings prior to the filing of the information in the circuit court. But the court granted permission for the withdrawal of the plea unconditionally and gave defendant leave to go into all grounds assigned in the motion which he then knew contained the allegation that defendant had not been accorded a preliminary examination.

The effect of such leave to withdraw and to be heard same position he would have occupied if he had filed such upon the plea in abatement was to place defendant in the plea before he entered his plea of not guilty to the information. Having exercised its discretion in defendant's favor, the trial court was bound to hear the matter contained in such plea in abatement and to determine it upon its merits as if such plea had been timely presented. To rule otherwise is to render meaningless all the cases holding that, after plea to the merits, a defendant may withdraw such plea by leave of court to file his plea in abatement.

No case on the exact point from our own jurisdiction has been found.

In the case of Drakopulos v. Biddle, 288 Mo. l. c. 435, a civil case, this...