State v. Raponi

• Citation: 32 Idaho 368,182 P. 855
• Parties: STATE, Respondent, v. TONY RAPONI, Appellant
• Decision Date: 08 July 1919
• Court: United States State Supreme Court of Idaho

182 P. 855

32 Idaho 368

STATE, Respondent, v. TONY RAPONI, Appellant

Supreme Court of Idaho

July 8, 1919

CRIMINAL LAW-RIGHT TO WITHDRAW PLEA OF GUILTY AFTER JUDGMENT-DISCRETION OF COURT.

1. C L., sec. 7757, which provides that "the court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted," does not prohibit the granting of a motion after judgment to withdraw a plea of guilty and substitute a plea of not guilty where the application therefor is based upon the fact that the plea of guilty was not made freely and voluntarily nor with understanding of the nature of the act of defendant in making the plea.

2. Permission to withdraw a plea of guilty is discretionary with the trial court, and such discretion should be liberally exercised.

3. A refusal of permission to withdraw a plea of guilty and substitute therefor a plea of not guilty can be reviewed only as to the question of whether the trial court exercised judicial discretion as distinguished from arbitrary action.

4. Where on an appeal from an order denying a defendant permission to withdraw his plea of guilty and substitute a plea of not guilty the record does not affirmatively show an abuse of discretion, the order of the trial court will be affirmed.

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

Criminal prosecution for having possession of intoxicating liquor. From an order denying defendant's application to set aside judgment and allow substitution of plea of not guilty for plea of guilty, theretofore entered, defendant appeals. Affirmed.

Order affirmed.

A. L Morgan, for Appellant.

A plea of guilty must be entirely voluntary and one entered through ignorance is not voluntary. (12 Cyc. 353 (IV); People v McCrory, 41 Cal. 458; Gardner v. People, 106 Ill. 76.) A plea of guilty can only be made by one competent to know and understand the consequences thereof. (8 R. C. L 115, sec. 83.)

Where no harm can result and no rights of the state be violated thereby, a plea of guilty should be permitted to be withdrawn. In no case should this right be denied, where it is evident that the ends of justice will be subserved by permitting the plea of guilty to be withdrawn. (State v. Nicholas, 46 Mont. 470, 128 P. 543; City of Salina v. Cooper, 45 Kan. 12, 25 P. 233; State v. Allen, 41 Wash. 63, 82 P. 1036; Pope v. State, 56 Fla. 81, 16 Ann. Cas. 972, 47 So. 487; Krolage v. People, 224 Ill. 456, 8 Ann. Cas. 235, 79 N.E. 570.)

If there is sufficient showing to raise a doubt as to the plea being voluntary, it should be set aside. (People v. Scott, 59 Cal. 341.) Where on the arraignment the judge fails to fully advise defendant of his rights to counsel, the plea of guilty should be set aside upon application. (State v. Allen, 41 Wash. 63, 82 P. 1036.)

Roy L. Black, Attorney General, and Alfred F. Stone, Assistant, for Respondent.

Sec. 7757, C. L., limits the time within which an application for withdrawal of a plea of guilty may be made, and such application, when not made prior to judgment, is too late and must be denied. (State v. Scott, 101 Wash. 199, 172 P. 234; Beatty v. Roberts, 125 Iowa 619, 101 N.W. 462; State v. Hortman, 122 Iowa 104, 97 N.W. 981.) The same rule is followed, though no statute appears to be relied on, in Stokes v. State, 122 Ark. 56, 182 S.W. 521; State v. Shanley, 38 W.Va. 516, 18 S.E. 734. The contrary is, however, held in California. (People v. Perez, 9 Cal.App. 265, 98 P. 870; People v. Montano (Cal. App.), 98 P. 871.)

The presumption is in favor of the ruling of the trial court, and unless it clearly appears that it has abused its discretion in refusing permission to a defendant to withdraw a plea of guilty, the order refusing such permission will not be disturbed on appeal. (People v. Dabner, 153 Cal. 398, 403, 95 P. 880; People v. Bostic, 167 Cal. 754, 141 P. 380; State v. Shanley, supra.)

In order to constitute an abuse of discretion upon the part of a trial court in refusing to allow defendant's application to withdraw a plea of guilty and substitute therefor a plea of not guilty, it must appear that the plea of guilty was entered under some mistake, misapprehension, compulsion, inducement or circumstance working an injustice. (State v. Stevenson, 67 W.Va. 553, 68 S.E. 286; Sanders v. State, 18 Ga.App. 786, 90 S.E. 728; State v. Wilmot, 95 Wash. 326, 163 P. 742.)

FLYNN, District Judge. Rice and Budge, JJ., concur.

OPINION

FLYNN, District Judge.

--Defendant, appellant here, was arrested on the charge of having in his possession intoxicating liquor, and was taken before the probate court, where he stated that he did not want an attorney, waived preliminary hearing, and was bound over to the district court. An information was there filed charging him with having in his possession "intoxicating liquor, to-wit: Dago Red." He was arraigned, and on being asked by the district judge if he wanted an attorney, replied that he did not. Thereupon he pleaded guilty, and was sentenced to pay a fine of four hundred dollars, and to serve thirty days in the county jail, and two hundred days additional in default of payment of the fine, or until such fine be paid at the rate of two dollars per day. All the foregoing court proceedings occurred on the same day. Seven days thereafter appellant moved the court to vacate and set aside its judgment, for the reason that he did not intend to plead guilty, and did not know that he was so pleading; that he was not guilty, and that prior to and at the time of said judgment he desired, and now desires, to defend against said action. After considering the affidavit of appellant and oral testimony in support of and in opposition thereto, the district judge denied the motion, from which order this appeal is taken.

Appellant is an Italian, and claims to have only a slight knowledge of the English language. His affidavit and testimony set forth that at the time of his arrest friends advised him that it would not be necessary for him to procure an attorney immediately on coming to Moscow, as he would only be given a hearing and placed under bond to appear for trial later; that at the time he appeared before the court he understood that such appearance and the proceedings thereat were merely for the purpose of fixing such bond; that the reason he stated to the court that he did not desire counsel was that he understood he would be admitted to bail, and it was his intention to thereafter see an attorney and arrange for his defense; that after his sentence he thought he was being held until he could furnish bail in the sum of $ 400, and that he made numerous efforts to get the sheriff to reduce his bail, believing that the sheriff had authority to do so. He admits possession of the barrel of liquid found in his house, but denies that it is intoxicating liquor. From the statements of appellant and of the sheriff, the barrel appears to contain raisins and water. The sheriff and his deputy testify that, at the time of his arrest, appellant claimed the barrel, and further stated, "if there is any fine to pay, I pay it." From the testimony of the sheriff and other witnesses, as well as from the testimony of appellant himself, it appears that he was fairly familiar with the English language. He had been at least ten years in Latah county. His application rests mainly on the claim that he confused the words "bail" or "bond" with the word "fine."

It is difficult to determine from the appellant's testimony whether or not this claim is made in good faith. He states that he expected to pay a fine and that he never expected to come back again. After his sentence, he stated, in the presence of the sheriff and his deputy, that he would have paid $ 25 fine, but he thought the other was too much.

On the hearing of the motion to set aside the judgment, he testified that he understood from the prosecuting attorney that the three...