State v. Poglianich

• Decision Date: 07 January 1927
• Citation: 43 Idaho 409,252 P. 177
• Parties: STATE, Respondent, v. DOMINICO POGLIANICH, Appellant
• Court: Idaho Supreme Court

252 P. 177

43 Idaho 409

STATE, Respondent, v. DOMINICO POGLIANICH, Appellant

Supreme Court of Idaho

January 7, 1927

CRIMINAL LAW-MOTION TO WITHDRAW PLEA OF GUILTY-SHOWING HELD SUFFICIENT.

1. On appeal from an order denying motion to vacate judgment and for permission to withdraw plea of guilty to first degree murder, supreme court need not pass on sufficiency of evidence only except in so far as bearing on question of whether plea was freely and voluntarily entered with reasonable understanding of rights and legal effect thereof.

2. The press of supposedly impending dire results of failure to plead guilty on mind of defendant is not of itself sufficient ground to deprive court of discretion in refusing to permit withdrawal of plea, unless it had effect of depriving defendant of his will-power, or so placed him in fear that he did not act freely and voluntarily.

3. Under showing by affidavits that defendant's plea of guilty to charge of first degree murder was not made voluntarily and understandingly, considered with record showing failure to comply with C. S., secs. 8858, 8862, 9023, 9024, 9032, 9037, relative to procedure on arraignment and in pronouncing judgment, trial court erred in refusing to permit withdrawal of plea.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Appeal from a judgment of life imprisonment rendered on a plea of guilty to murder in the first degree, and from an order denying a motion to vacate the judgment and for permission to withdraw the plea of guilty and enter a plea of not guilty. Reversed and remanded.

Reversed and remanded with instructions.

Tannahill & Leeper, for Appellant.

A valid preliminary examination was essential to confer jurisdiction upon the district court, and any alleged waiver of a preliminary must have been knowingly and voluntarily made by the defendant with full knowledge of the consequences of his act, and after a strict compliance with all statutory requirements. (C. S., secs. 8816, 8743, 8744; sec. 8, art. 1 Const.; In re Madison, 36 Kan. 725, 14 P. 144; People v. Napthaly, 105 Cal. 641, 39 P. 29.)

The defendant must be allowed a reasonable time, not less than one day, to answer the indictment. (C. S., sec. 8862.)

After a plea of guilty, the court must appoint a time for pronouncing judgment, which in case of felony must be at least two days after the verdict. (C. S., sec. 9023.)

When a plea of guilty upon which a judgment of conviction is based is entered under such conditions as to indicate that the same was involuntary and in ignorance of its significance on the part of the defendant, or under conditions indicating menace duress, fraud, oppression, or mistake, which deprived the plea of its voluntary character, particularly when there appears to be doubt as to the innocence or guilt of the defendant, it is an abuse of discretion not to permit withdrawal of the plea and to reinstate the action for a jury trial. (State v. Arnold, 39 Idaho 589, 229 P. 748; State v. Raponi, 32 Idaho 368, 182 P. 855; Howington v. State (Okla. Cr.), 235 P. 931; Mullen v. State (Okla. Cr.), 230 P. 285; Polk v State (Okla. Cr.), 224 P. 193; People v. McCrory, 41 Cal. 458; People v. Scott, 59 Cal. 341; City of Salina v. Cooper, 45 Kan. 12, 25 P. 233; State v. Nicholas, 46 Mont. 470, 128 P. 543; Krolage v. People, 224 Ill. 456, 8 Ann. Cas. 235, 79 N.E. 570; State v. Stevenson, 64 W.Va. 392, 62 S.E. 688, 19 L. R. A., N. S., 713; State v. Cimini, 53 Wash. 268, 101 P. 891; People v. Miller, 114 Cal. 10, 45 P. 986; State v. Marasca, 85 Conn. 509, 83 A. 635.)

"Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree." (C. S., sec. 9024.)

"Where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view in aggravation or mitigation of the punishment, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct." (C. S., sec. 9036.)

These statutes are identical with those of California, whose courts have construed them as mandatory. (People v. Chew Lan Ong, 141 Cal. 550, 99 Am. St. 88, 75 P. 186; People v. Bellen, 180 Cal. 706, 182 P. 420; People v. Paraskevopolis, 42 Cal.App. 325, 183 P. 585.)

A. H. Conner, Attorney General, John W. Cramer, Assistant Attorney General, and Arthur S. Guerin, Jr., for Respondent.

In order to take advantage of a defect or irregularity in a preliminary examination a motion to set aside the information on the ground that the defendant has not been legally committed by a magistrate must be interposed before plea or trial. If such motion is not made the defendant is precluded from afterward making such objection. (State v. Clark, 4 Idaho 7, 35 P. 710; People v. Bawden, 90 Cal. 195, 27 P. 204.)

All presumptions are in favor of the regularity of the proceedings of courts of record, and in the absence of any showing to establish the fact as to whether or not a court has complied with the requirements of law, the presumption will at once arise that the law has been complied with. ( State v. Suttles, 13 Idaho 88, 88 P. 238; State v. Ricks, 34 Idaho 122, 201 P. 827.)

Error will not be presumed but the record must affirmatively show the error complained of. (State v. Dawson, 40 Idaho 495, 235 P. 326; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791.)

There is no irregularity in the proceedings by reason of the fact that they were all had in one day. (State v. Raponi, 32 Idaho 368, 182 P. 855.)

The showing made by appellant is insufficient to support the contention of appellant that the court acted arbitrarily in refusing to permit the substitution of pleas. (State v. Raponi, supra; State v. Arnold, 39 Idaho 589, 229 P. 748; State v. Peterson, 42 Idaho 785, 248 P. 12.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge, Givens and T. Bailey Lee, JJ., concur.

OPINION

TAYLOR, J.

This appeal is from a judgment of life imprisonment rendered on a plea of guilty to murder in the first degree, and from an order denying a motion to vacate the judgment and for permission to withdraw the plea of guilty and enter a plea of not guilty.

The homicide occurred February 15, 1926. Defendant was arrested at Pierce City and brought to Orofino that day. At 9:30 A. M., February 16th, at a preliminary examination in the probate court, he was bound over to the district court, the order reciting that he appeared in person and by his attorney, and waived a preliminary examination. At 10 o'clock A. M., an information charging murder in the first degree was filed in the district court, and the defendant arraigned. The court appointed an attorney for the defendant, and continued the matter to 2 P. M. of that day for plea. At 2 P. M., defendant entered a plea of guilty, and was immediately sentenced to life imprisonment, and the same afternoon was taken to Lewiston to await a traveling guard from the penitentiary. His present counsel were engaged in Lewiston on February 17th, and immediately prepared, and upon February 18th filed and served, the motion and showing in his behalf.

The defendant, as grounds for his motion, alleged that he had never had a preliminary hearing; that the alleged preliminary proceedings were void, for the reason that he was never advised as to his right to have an attorney, was not permitted the services of an attorney, and did not voluntarily and with full knowledge of the facts and the law waive a preliminary examination; that he was utterly ignorant and uninformed as to the meaning of a plea of guilty to a first degree murder charge, and had no knowledge as to the consequences thereof; that his waiver of a preliminary and plea of guilty were not voluntarily made, with an understanding and knowledge of the consequences thereof, but were secured by fraud, menace, duress and cruelty exercised against him by the prosecuting officers of the county, and while he was in a state of great fear, and after threats of hanging if he went to trial; that he had a good, valid and legal defense to said charge.

Defendant's affidavits set forth some of the facts and circumstances surrounding the homicide, alleging and tending to prove that he acted in self-defense. They further allege: That he had been subjected to mistreatment, threats and bodily violence continued up until late in the evening before his plea; that the prosecuting attorney and another attorney unknown to him endeavored by such threats, constant pressure and physical mistreatment, to break defendant down and force him to confess and plead guilty to the charge of first degree murder; "that part of said physical mistreatment consisted in affiant's being thrown to the floor and choked"; that they repeatedly told him that if he did not plead guilty to first degree murder, he would be hanged, but that if he did plead guilty he would get only life imprisonment.

That he was placed in jail for the rest of the night, and did not sleep at all because of the worry, fear and terror under which he was laboring; "that by reason of said facts defendant became frightened, confused and overcome with the terror of being hanged if he went to trial, and also was in a stage of mental and physical collapse"; that while in this condition, on the morning of February 16th, he was taken before the probate court for preliminary examination, and entered a plea of guilty to the charge of first degree murder.

That he was immediately arraigned in the district court on an information charging first degree murder; that the court thereupon appointed as attorney for him a young...