State v. Thomson

• Citation: 278 P.2d 142,203 Or. 1
• Parties: STATE of Oregon, Respondent, v. Richard E. THOMSON, Appellant.
• Decision Date: 15 December 1954
• Court: Supreme Court of Oregon

Page 142

278 P.2d 142

203 Or. 1

STATE of Oregon, Respondent, v. Richard E. THOMSON, Appellant.

Supreme Court of Oregon, En Banc.

Argued and Submitted Nov. 10, 1954.

Decided Dec. 15, 1954.

Mark Weatherford, Albany, argued the cause for appellant. On the briefs were L. Leonard Krause, Newport, Earl P. Conrad, Toledo, and Weatherford & Thompson, Albany.

W. T. Hollen, Dist. Atty. for Lincoln County, Newport, and A. R. McMullen, Deputy Dist. Atty. for Lincoln County, Newport, argued the cause and filed a brief for respondent.

LUSK, Justice.

The defendant has appealed from a judgment of conviction of the crime of assault with intent to kill.

The indictment alleged that the defendant, on the tenth day of September, 1953, in Lincoln County 'did then and there unlawfully and feloniously assault one James Meuler, by then and there striking, beating, bruising, and wounding him, the said James Meuler, with a certain iron pipe, and by then and there at said time and place wilfully and intentionally driving and projecting the automobile in which the said James Meuler was riding as a passenger, off of the travelled portion of the roadway and over and off of a precipice approximately 400 feet high, while the said James Meuler was still in said automobile, all with the intent on the part of him, the said Richard E. Thomson, to then and there kill the said James Meuler'.

Error is assigned to the admission in evidence, over the defendant's objection, of a record of the Circuit Court for Lincoln County establishing that on September 15, 1953, the defendant waived indictment and pleaded guilty to an information charging the same offense. The evidence shows that the defendant, through his counsel, on September 21, 1953, filed a motion for permission to withdraw his plea of guilty and to substitute for it a plea of not guilty. The motion was supported by defendant's affidavit in which he swore in substance that, while under great mental strain and shock and after long questioning by peace officers, he signed a written statement relating to the charge against him, the contents of which he did not remember but in which, as he was advised by his attorneys, appeared a statement that he struck Jim Meuler with intent to kill him, and that he had planned to kill him for several months; that he did not strike Meuler with intent to kill him and never planned to kill him, and had made no statement to that effect; that at the time he entered his plea of guilty he was not represented by counsel and was not advised of the elements necessary to constitute the crime of assault with intent to kill as charged, and that he was not guilty of that crime.

On September 21, 1953, the court entered an order allowing the motion. Thereafter the case was submitted to the grand jury, which, on November 20, 1953, returned the indictment, the charging part of which we have quoted, and to which the defendant duly entered a plea of not guilty.

The question presented by the assignment of error is whether evidence of a plea of guilty entered to an information or indictment and later withdrawn by permission of the court, with leave to enter a plea of not guilty, is admissible in evidence against the defendant on his subsequent trial. It is a new question in Oregon.

The state contends that, apart from other reasons, the evidence was properly admitted because the plea of guilty was not entered in this but in another case. But the crime charged in the information to which the defendant pleaded guilty was substantially the identical crime charged in the indictment, save that in the latter additional means of commission of the crime are alleged, and we think that the reasons which would support either the admission or exclusion of the evidence are as applicable to this case as though the plea of guilty had been to the indictment.

The state also invokes ORS 136.540, which reads:

'A confession of a defendant, whether in the course of judicial proceedings or to a private person, cannot be given in evidence against him when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.'

The statute, in our opinion, does not reach this question. It is in the negative and was passed for the protection of persons accused of crime. It is not a command that all confessions not made under the influence of fear, produced by threats, shall be admitted in evidence, and does not attempt beyond its express terms to control the courts in their traditional function of determining the competency of evidence. That portion of the statute which prohibits the admission in evidence of confessions made under the influence of fear is the law everywhere in this country, whether so provided by statute or not, 22 C.J.S., Criminal Law, § 817b, page 1425; but this fact has not deterred courts from holding that a withdrawn plea of guilty is inadmissible in evidence against the accused on his subsequent trial.

In Oregon the privilege of withdrawing a plea of guilty is provided for by ORS 135.850, which reads:

'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 therefor.'

It should be borne in mind that the statute does not confer an absolute right, but the permission to withdraw a plea is within the sound discretion of the court. State v. Wiley, 144 Or. 251, 253, 24 P.2d 1030, and cases there cited. See, also, 22 C.J.S., Criminal Law, § 421, pages 638-644, 20 A.L.R. 1445; Cassidy v. State, 201 Ind. 311, 168 N.E. 18, 66 A.L.R. 628.

According to the modern textwriters the majority rule is that the evidence is inadmissible. It is said in 20 Am.Jur. 420, Evidence, § 481:

'* * * There is no doubt merit in the contention that the plea should be admitted, yet the majority rule seems to have the advantage of fairness and justice. As has been said, considerations of fairness forbid a court permitting a plea to be withdrawn for cause and at the next moment allowing the fact of the plea having been made to be admitted in evidence with all its injurious consequences as an admission or confession of guilt by the accused.' 20 Am.Jur. 420, Evidence, § 481.

See, also, Wharton's Criminal Evidence (11th Ed.) 976, § 587; Underhill's Criminal Evidence (4th Ed.) 548, § 277; annotation 124 A.L.R. 1527. Contra, Abbott's Criminal Trial Practice (4th Ed.) 1102, § 588. Wigmore refers to the subject but expresses no opinion. 4 Wigmore on Evidence (3d Ed.) 66, § 1067.

The following cases hold that the evidence is inadmissible: Kercheval v. United States, 1927, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; Heim v. United States, 1918, 47 App.D.C. 485, L.R.A.1918E, 87 (one judge dissenting); Pharr v. United States, 6 Cir., 1931, 48 F.2d 767; Jamail v. United States, 5 Cir., 1930, 37 F.2d 576; People v. Ryan, 1890, 82 Cal. 617, 23 P. 121; People v. Street, 1939, 288 Mich. 406, 284 N.W. 926; State v. Anderson, 1927, 173 Minn. 293, 217 N.W. 351; State v. Hook, 1928, 174 Minn. 590, 219 N.W. 926; State v. Meyers, 1889, 99 Mo. 107, 12 S.W. 516; Frantz v. State, 1940, 70 Okl.Cr. 214, 105 P.2d 561; Heath v. State, 1923, 23 Okl.Cr. 382, 214 P. 1091; Perry v. State, 1940, 84 Okl.Cr. 211, 181 P.2d 280; State v. McGunn, 1940, 208 Minn. 349, 294 N.W. 208; White v. State, 1874, 51 Ga. 285 (dictum); Green v. State, 1898, 40 Fla. 474, 24 So. 537; State v. Jensen, 1929, 74 Utah 299, 279 P. 506; State v. Meyers, 1889, 99 Mo. 107, 12 S.W. 516; State v. Abel, 1928, 320 Mo. 445, 8 S.W.2d 55. See, also, State v. Leaks, 1940, 124 N.J.L. 261, 10 A.2d 281.

On the other side of the question are the following decisions: People v. Steinmetz, 1925, 240 N.Y. 411, 148 N.E. 597 (two judges dissenting); State v. Carta, 1916, 90 Conn. 79, 96 A. 411, L.R.A.1916E, 634; Morrissey v. Powell, 1939, 304 Mass. 268, 23 N.E.2d 411, 124 A.L.R. 1522 (civil case); State v. Bringgold, 1905, 40 Wash. 12, 82 P. 132, 5 Ann.Cas. 716; State v. Weekly, 1952, 41 Wash.2d 727, 252 P.2d 246 (two judges dissenting; two judges, while concurring in the result, expressed agreement with the dissent on this question); State v. Nichols, 1949, 167 Kan. 565, 207 P.2d 469 (dictum); People v. Boyd, 1924, 67 Cal.App. 292, 227 P. 783 (overruling People v. Ryan, supra); Rascon v. State, 1936, 47 Ariz. 501, 57 P.2d 304. (The court cited cases supporting the view that the evidence should be admitted and said 'We have found none to the contrary.'); Wells v. State, 1938, 134 Tex.Cr.R. 412, 115 S.W.2d 658.

Other cases cited by the state in support of its position we find, on examination, to be not in point.

When the Supreme Court decided Kercheval v. United States, supra, it had before it State v. Carta and People v. Steinmetz, both supra, in which the majority opinions ably expound the reasons which persuaded the Connecticut and New York courts that evidence of the kind in question should be received. Summarizing these views, the Supreme Court, speaking through Mr. Justice Butler, said [274 U.S. 220, 47 S.Ct. 583]:

'* * * The arguments for admissibility to be gleaned from these cases are that the introduction of the withdrawn plea shows conduct inconsistent with the claim of innocence at the trial; that the plea is a statement of guilt having the same effect as if made out of court; that it is received on the principle which permits a confession of the accused in a lower court to be shown against him at his trial in the higher court; that it is not received as conclusive, and, like an extrajudicial confession, is not sufficient without other evidence of the corpus delicti. It is sometimes likened to prior testimony of the defendant making in favor of the prosecution.'

After citing cases which hold that a withdrawn plea of guilty is not admissible at the trial of the issue arising upon the substituted plea of not guilty, the court continued:

'* * * We think that contention is sound....