State v. Wiley

• Citation: 24 P.2d 1030,144 Or. 251
• Parties: STATE v. WILEY.
• Decision Date: 06 September 1933
• Court: Supreme Court of Oregon

24 P.2d 1030

144 Or. 251

STATE v. WILEY.

Supreme Court of Oregon

September 6, 1933

Department 2.

Appeal from Circuit Court, Josephine County; H. D. Norton, Judge.

Milton Wiley was charged with second degree murder. From an order refusing to permit accused to withdraw his plea of guilty and enter a plea of not guilty, he appeals.

Affirmed.

V. A C. Ahlf, of Portland, for appellant.

Sherman S. Smith, Dist. Atty., of Grants Pass, for the State.

BEAN, Justice.

The defendant Milton Wiley was charged upon information with the crime of murder as follows: "That said Milton Wiley, on the 10th day of August, 1932, in the said County of Josephine and State of Oregon, then and there being, did then and there unlawfully, purposely and maliciously, kill John Simenon, by shooting him with a gun, contrary to the statute in such cases, made and provided and against the peace and dignity of the State of Oregon."

The state procured from defendant a statement signed by the defendant as of August 19, 1932, to the effect that on the night of August 10, at about 9:30 p. m., John Simenon came to defendant's camp and called to defendant and asked him to go for a ride in a truck. The defendant declined. The deceased then drove a short distance and stopped his truck and called defendant a "son-of-a-bitch," and got out of the truck and came over to the camp fire and again called defendant the same name, and defendant said: "I jumped up and grabbed my rifle and told him to take it back. He made no reply and I asked him one or two times more to take it back and he didn't do it and I lost my head and fired and John fell." John Simenon died soon after.

Defendant pleaded guilty to the crime of second degree murder, as charged in the information filed against him, whereupon the court appointed counsel for defendant and heard testimony as to the degree of the crime, and found that the defendant Milton Wiley was guilty of murder in the second degree and sentenced him accordingly. Defendant moved to change the plea of guilty and enter a plea of not guilty. Supporting affidavits were filed, and it is claimed newly discovered evidence on behalf of defendant can be produced.

Section 13-843, Oregon Code 1930, provides "The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted therefor."

A party, after pleading guilty to a criminal charge, does not have an absolute right to withdraw such admission and interpose a plea of not guilty, as generally determined; the rule being that the determination of the question lies in the judicial discretion of the court. Curran v. State, 53 Or. 154, 158, 99 P. 420; State v. Lewis, 113 Or 359, 363, 230 P. 543, 232 P. 1013; Wharton, Criminal Pleading & Practice (9th Ed.) § 414; People v. Lee, 17 Cal 76; Morton v. People, 47 Ill. 468. Mr. Wharton, in his valuable work, states in section 414 that the overruling of the motion is not subject for error unless by refusal of the application great injustice has been done.

We find no indication that the court abused its discretion in refusing to permit defendant to withdraw his plea of guilty and enter a plea of not guilty. The defendant filed no affidavit impeaching his statement made in writing in regard to the affair, and does not question his statement. It is clear that the designation of the defendant by John Simenon of opprobrious names did not warrant defendant in firing the fatal shot. The circumstances stated by defendant,...