State v. Shanlrey

• Decision Date: 18 November 1893
• Parties: STATE v. SHANLrEY.
• Court: West Virginia Supreme Court

18 S.E. 734

38 W.Va. 516

STATE

v.SHANLrEY.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1893.

Intoxicating Liquors — Illegal Sales — Judgment on Plea of Guiltt — Changing Plea— Courts—Special Terms.

. 1. On an indictment for a violation of the state revenue law in selling spirituous liquors without a license, the plea of guilty may be entered without formally and expressly withdrawing a plea of not guilty theretofore entered.

2. In a criminal case, the court may permit the plea of guilty to be withdrawn, and another plea to be entered in its place, in the exercise of a sound discretion, if justice and a fair trial on the merits require it; but it must be in time, and the reason for it must be made to appear clearly and distinctly.

3. A judge of the circuit court, in pursuance of section 5 of chapter 112 of Code, by a warrant directed to the clerk appoints a special term, which warrant the clerk enters in the order book of the court, but fails to post a copy of such warrant at the door of the courthouse. Held, such omission does not in any wise affect the validity of the proceedings of such special term of the court.

(Syllabus by the Court.)

Error from circuit court, Taylor county; Joseph T. Hoke, Judge.

J. W. Shanley was indicted for selling spirituous liquors unlawfully, and from a judgment entered on a plea of guilty he brings error. Modified and affirmed.

W. R. D. Dent, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

HOLT, J. This is a writ of error from a judgment of the circuit court of Taylor county, rendered on the 1st of June, 1892, on a plea of guilty to an indictment against J. W. Shanley for the unlawful selling of spirituous liquors. The following is the assignment of errors in the judgment complained of: "(1) The court erred in permitting the plea of guilty to be entered without having the plea of not guilty, theretofore entered by petitioner, disposed of or withdrawn. (2) The court erred in refusing to allow petitioner leave to withdraw the plea of guilty. (3) The court erred in rejecting petitioner's affidavit, marked 'Shan ley's Rejected Affidavit, ' and refusing petitioner leave to file said affidavit. (4) The court erred in overruling petitioner's motion to quash the warrant of the judge appointing said special term of said court, for the reasons assigned by petitioner. (5) The court erred in overruling petitioner's motion to continue said case until the first day of the next term of said court, for want of jurisdiction to dispose of the same at said special term. (6) The court erred in hearing and considering the evidence of the clerk of said court as to the posting of said warrant calling said special term, and notifying the sheriff and prosecuting attorney thereof, as the law directs. (7) The court erred in overruling petitioner's motion in arrest of judgment, and in entering judgment on the said plea of guilty so entered. (8) The said judgment complained of is absolutely null and void. It deprives petitioner of his liberty and property. Petitioner was induced by the agreements and representations of said prosecuting attorney, made with the knowledge and assent of said court, (as set out in said affidavit,) to enter said plea of guilty, thereby agreeing away his rights, on condition that no such judgment was to be entered; and any judgment rendered on such plea is absolutely null and void, and should be reversed and set aside." The indictment is in the usual form, and to it there is no objection. On April 17, 1891, defendant entered the plea of not guilty, put himself upon the country, and the state did the like. On April 21, 1891, "came the defendant in person, and pleads guilty to the indictment, whereupon the court takes time to consider of its judgment herein." At the April term, 1892, the court issued a capias to hear judgment, returnable forthwith, and, when brought in, he entered into a recognizance with sureties for his future appearance. By warrant dated April 29, 1892, the judge of the circuit court ordered and appointed a special term, to commence May 31, 1892. See Code, § 5, c 112. At this term, on the 1st day of June, defendant appeared in discharge of his recognizance, and moved the court for leave to withdraw his plea of guilty, and to permit him to plead not guilty to the indictment, and tendered an affidavit in support of the motion, which affidavit being inspected and read by the court, the court overruled defendant's motion for leave to withdraw his plea of guilty and enter his plea of guilty, and the defendant excepted. He also moved the court to quash the warrant appointing a special term, and moved the court to continue the cause; but the court overruled these motions, and, having fixed the defendant's fine at $100, and his inprisonment in the county jail at 60 days, rendered judgment accordingly.

Scott's Case, 10 Grat. 749-755, was a case of unlawfully selling liquors. The present-ment was made at March term, 1851, and at the May term the defendant appeared and demurred, and, the demurrer being overruled, he then pleaded not guilty. At the August term, 1852, when the cause was called for trial, he moved for leave to withdraw his plea of not guilty, and plead that he was not a free negro, but an Indian; but it was held the plea was tendered too late, even if it was a good plea. See Code, § 2, c. 159, and Id. § 19. Mastronada v. State, 60 Miss. 80, was an indictment for unlawfully retailing liquor. The defendant had pleaded guilty, but, before sentence had been passed upon him, he moved the court for leave to withdraw his plea of guilty. In support of his motion he filed an affidavit, but did not aver his innocence of the charge. The action of the trial court refusing leave to withdraw the plea of guilty was held to be correct. The defendant in that case, as in this, appeared to have been an old offender, who, in other cases for a like offense, had pleaded guilty, and escaped with the mildest penalty allowed by law, but, being alarmed by a rumor that he was to be more severely dealt with, wished to withdraw his plea, and take his chances before the jury. Judge Chalmers, in closing his opinion, says: "The action of the court probably and properly taught him that the infliction of the lowest penalty for the first offense, instead of conferring a vested right to the same measure of punishment for the second, rather suggests the propriety of so increasing the penalty that it may effectually deter from the recurrence of the third." In the case of Pattee v. State, 109 Ind. 545, 10 N. E. 421, it was held "that, in the absence of a showing that there was an abuse of discretion, the refusal of the trial court to permit the withdrawal of a plea of guilty will be upheld." Elliott, C. J., says: "Affidavits cannot be made part of the record by the mere recital of the clerk. * * * The presumption is in favor of the ruling of the court, and, in the absence of a clear and strong showing that there was an abuse of discretion, the ruling must be sustained." In People v. Eee, 17 Cal. 76, it was held that the granting of leave to withdraw a plea rested in the discretion of the court, and no circumstances were shown which indicated that there was any abuse in the exercise of that discretion. In Phillips v. People, 55 111. 429, it was held that nothing short of a clear abuse of the sound discretion of the court in such refusal can be assigned as error. In Com. v. Mahoney, 115 Mass. 151, 152, Gray, C. J., delivering the opinion, says: "A defendant in a criminal case, who has once pleaded to the charge against him, has no right to withdraw his plea, but is confined to the issues of law or fact thereby raised or left open, unless the court in which the case is pending sees fit to exercise the discretion of allowing him to withdraw it, and plead anew." "Probably a not inaccurate expression of the American doctrine would be that the judge may permit a pleading to be withdrawn, and another put in its place, whenever this would not violate any positive rule of law or of established practice, but that such a discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a mere dilatory or formal defense." 1 Bish. Crim. Proc. § 124. See Rocco v. State, 37 Miss. 357-366, (an indictment for retailing,) a case in which the refusal does not appear to have worked any injury. In Com. v. Goddard, 13 Mass. 455-458, the retraction of the plea of not guilty was while the proceedings were in fieri. No matter can be pleaded which is not of right. Foster v. Com., 8 Watts & S. 77-79. While the pleadings are in fieri they may be amended. Rex v. Knowles, 1 Salk. 47; Bonfield v. Milner, 2 Burrows, 1098. See O'Hara v. People, 41 Mich. 623, 3 N. W. 161; Whart. Crim. Pl. § 414, (8th Ed.)

The offense charged was a violation of the revenue laws of the state, (chapter 32, §§ 1, 3, 48, 49,) and a writ of error in such cases lies as well for the state as for the accused. Code, § 3, c. 160. The term was passed at which the plea of not guilty was, by necessary implication, withdrawn, and the plea of guilty was entered, and nothing remained to be done but for the court to fix the penalty and render judgment. Nothing else was left open at the following term, when defendant made his motion, and if the case of Com. v. Scott, 10 Grat. 749, is in point, his motion came too late. It had ceased to...