State v. Weekly

• Decision Date: 26 December 1952
• Docket Number: No. 32018,32018
• Citation: 252 P.2d 246,41 Wn.2d 727
• Parties: STATE, v. WEEKLY.
• Court: Washington Supreme Court

Page 727

41 Wn.2d 727

252 P.2d 246

STATE, v. WEEKLY.

No. 32018.

Supreme Court of Washington, en Banc.

Dec. 26, 1952.

Henry Opendack and Carl Maxey, Spokane, for appellant.

Hugh H. Evans and Ellsworth I. Connelly, Spokane, for respondent.

OLSON, Justice.

This is an appeal from the judgment and sentence entered upon the verdict of a jury in the trial of defendant for the crime of attempted rape.

Upon arraignment, defendant pleaded not guilty. Later, he appeared with counsel and withdrew this plea and pleaded guilty to the charge. At a subsequent hearing, when he again appeared with counsel for sentence, he was questioned carefully by the court upon the basic facts of the charge against him. He admitted these facts, but, when the court was about to pronounce sentence and indicated that probation would not be granted, he requested and obtained leave to withdraw his plea of guilty and re-enter his plea of guilty.

During the trial of the cause upon this plea, defendant testified in his own behalf. On cross-examination, counsel for the state asked him the following question: 'Mr. Weekly, on the 3rd day of September, 1951, did you appear in Judge Greenough's court with your counsel, and enter a plea of guilty to this charge?'

Defendant's objection was sustained, and, upon his motion, the question was stricken and the jury instructed to disregard it. These rulings are not before us for review, and we need not and do not express any opinion on them.

Defendant contends that the court 'erred in failing to declare a mistrial or to allow the appellant [defendant] to go into the facts involved after the state asked the question.'

Basically, defendant's contention is that the question was so prejudicial that, by asking it, the state deprived him of a fair trial. While it is not so labeled by defendant, it is in fact a claim of misconduct of counsel for the state. To prevail on such a claim, defendant must show that counsel did not act in good faith, and that asking the question was in fact prejudicial. State v. Whetstone, 1948, 30 Wash.2d 301, 337, 191 P.2d 818.

The good faith of counsel can be tested by the following, among other, inquiries: Was the question based upon facts established by the record? Was it material and relevant? Did counsel have any basis for a belief that the court would overrule an objection to it? Did counsel abide the ruling of the court and not pursue the inquiry after the objection was sustained? Each of these questions must be answered in the affirmative in this case.

The record shows that the facts stated in question form were true. Defendant not only admitted the legal conclusion of guilt by his plea, but, in answer to inquiries by the court at that time, admitted the facts charged. These facts were material, and proof of their admission or confession was relevant to the issue.

When the objection was made the jury was excused promptly. Counsel for the state asserted to the trial court that the question was not objectionable, and cited authority for his position. See State v. Bringgold, 1905, 40 Wash. 12, 82 P. 132, wherein this court held that a plea of guilty to a complaint in justice court was admissible against the defendant, in a trial in the superior court upon an information charging the same offense. That the rule advanced by the state is not universally followed, does not concern us here. It is sanctioned by respectable authority, in which the view is taken that such a plea is an admission which may be introduced in evidence against the accused. People v. Steinmetz, 1925, 240 N.Y. 411, 148 N.E. 597; Rascon v. State, 1936, 47 Ariz. 501, 512, 57 P.2d 304, 309; People v. Cooper, 1947, 81 Cal.App.2d 110, 118, 183 P.2d 67, 72 and cases cited. See discussion in 4 Wigmore on Evidence (3d ed.) 66, § 1067, and 1951 Supp., p. 26; Annotation, 124 A.L.R. 1527, 1532; Model Code of Evidence, p. 241.

No effort was made by counsel for the state to renew the matter by reframing his question or by a statement, in arguing the objection in the presence of the jury or otherwise, showing any intention to circumvent or disregard the court's ruling. The record plainly indicates that he acted in good faith.

We cannot say that the trial court abused its discretion in deciding that the conduct of the deputy prosecutor was not prejudicial to defendant, and in denying defendant's motion for a new trial. To do so, we would have to assume that the jury did not obey the court's instructions to disregard the question. This we will not do. Our assumption is that, when a question is asked and an objection sustained, a jury will understand that for some good and sufficient reason the court believed the question improper. State v. Whetstone, supra, 30 Wash.2d at page 340, 191 P.2d at page 840.

This disposition of the case makes it unnecessary for us to consider the state's contention that the question was proper, and for that reason cannot be the basis of a successful claim of error.

Defendant further contends that he should have been permitted to explain the circumstances under which he made his plea of guilty. Viewing this plea as an admission against interest, the fact that it was made in open court certainly should not detract from the consideration it should receive. When an accused is confronted with any admission or confession, he may, if he affirms it, explain fully all the circumstances under which he claims it was made. But here no admission was before the jury for explanation. Defendant did not choose to waive his objection and offer any proof in this regard, or otherwise present this contention to the trial court. A claim of error of this nature, first asserted in this court, cannot be considered.

The judgment is affirmed.

SCHWELLENBACH, C. J., and MALLERY, HILL and GRADY, JJ., concur.

HAMLEY, Justice (concurring).

For the reasons stated in Judge DONWORTH'S dissenting opinion, I favor overruling Estate v. Bringgold, 40 Wash. 12, 82 P. 132. However, there is not a majority on the court in favor of overruling that decision. The bringgold decision therefore continues to state the law on the subject, and supports the judgment under review. Accordingly, I concur in the result reached by the majority.

WEAVER, J., concurs.

DONWORTH, Justice (dissenting).

I find myself unable to agree with the majority opinion in several particulars.

In my opinion, appellant was entitled to have the trial court declare a mistrial after the state had asked him if he had previously pleaded guilty to the same charge for which he was then being tried. The prejudicial effect of asking this question could not be cured by the court's striking it and instructing the jury to disregard it.

Here, the ultimate question for the jury to determine was whether the state had proved beyond a reasonable doubt that appellant was guilty of the offense with which he was charged. Permitting the state to ask him if he had pleaded guilty to the charge, although the question was stricken and the jury instructed to disregard it, could only result in the jury's getting the idea firmly in their minds that appellant had already admitted his guilt. Therefore, the jury would gain the impression that there was no need to further weigh the evidence in deciding that issue.

The purpose of asking a defendant upon arraignment whether he pleads guilty or not guilty is not to exact a confession in open court (if he pleads guilty). The object is to ascertain whether the defendant wishes to put the state to its proof of the facts alleged in the information or whether he wishes to waive a trial by jury and permit the court to find him guilty upon his plea and pronounce sentence without further proceedings.

There is no connection between his plea of guilty and a confession either in or out of court. A defendant may wish to plead guilty for any one of several reasons having nothing to do with his guilt. He may wish to spare his family the unfavorable publicity attendant upon a trial. He may, for private reasons, prefer to plead guilty rather than have his past paraded before the world. He may fear that a trial might result in a relative or friend being charged as an accessory or in the defendant's being charged with other crimes. These and other cogent reasons may impel a defendant who does not believe he is guilty to plead guilty and waive a public trial. Whatever his motive, this is his privilege whether he be guilty or not guilty. When his plea of guilty is withdrawn, it is wiped out and becomes a nullity for all purposes.

If the question may be asked whether he did not previously plead guilty to the charge, then, from a practical standpoint, there would be no use in a defendant's asking permission to withdraw a plea of guilty and enter a plea of not guilty because he is almost certain to be convicted. Heim v. United States, 47 App.D.C. 485, L.R.A.1918E, 87.

As to the present state of the law relating to this subject, our only case on this point, State v. Bringgold, 1905, 40 Wash. 12, 82 P. 132, treats a plea of guilty before a justice of the peace as being the same as a confession made out of court and holds that it is admissible in evidence as such. Assuming, for our purposes, that there is no distinction between a felony and a misdemeanor, I think that the Bringgold case should be overruled and that we should adopt the modern majority rule which is to the contrary. See cases referred to in 124 A.L.R. 1527.

The Supreme Court of the United States considered this problem in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 583, 71 L.Ed. 1009, and reversed a conviction because evidence of a prior plea of guilty had been admitted. After referring to the two lines of authority upon the subject, the court in holding such evidence inadmissible said:

'We think that contention is sound. A plea of guility differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a...