Turner v. State

• Decision Date: 12 January 1920
• Docket Number: 20977
• Citation: Turner v. State, 121 Miss. 68, 83 So. 404 (Miss. 1920)
• Court: Mississippi Supreme Court
• Parties: TURNER v. STATE

83 So. 404

121 Miss. 68

TURNER v. STATE

No. 20977

Supreme Court of Mississippi

January 12, 1920

October 1919

1. CRIMINAL LAW. Necessity of stating defense in application to withdraw plea of guilty.

Where in a criminal case, a plea of guilty is entered and is afterward sought to be set aside, the applicant should at least state the substance of his defense, so that the court may judge of the merits.

2. CRIMINAL LAW. Trial court's statement accepted as true on appeal, as against ex parte affidavits.

The trial judge's statement on appeal must be accepted as true as against a mere ex parte affidavit, especially where the statements made by the judge are not directly contradicted.

3. CRIMINAL LAW. Refusal to permit withdrawal of plea of guilty sustained.

Where in a criminal case a defendant entered a plea of guilty and afterwards sought to withdraw such plea stating in his application to withdraw that the plea of guilty was made through ignorance, but did not set forth the facts alleged to constitute a defense, and the trial court stated in the record that accused had made a full statement regarding the offense charged when the plea of guilty was entered which statement of facts was no defense. In such case there was no abuse of discretion in denying the application.

APPEAL from the circuit court of Simpson county, HON. H. H. HUGHES Judge.

George Turner's motion to withdraw a plea of guilty to assault with intent to kill and enter a plea of not guilty was denied and he appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

A. M. Edwards and J. J. Stubbs, for appellant.

Section 28 of the constitution of the state of Mississippi reads as follows: "Cruel or unusual punishment shall not be inflicted nor excessive fines be imposed." Viewing the two sentences, in the cases against appellant for the charges preferred, is it not apparent that the same is manifestly unusual and cruel? Or that the court was actuated by fear of mob violence and to appease the hot blood against appellant, that such sentences would preserve the peace and no effort would be made towards mob violence. If either be true it is in strict violation of the Constitution, section just above cited.

12 Cyc. at page 788, we find the following language: "The court may, during the term, for good cause shown and in its discretion, set aside a judgment of conviction entered on a plea of guilty, or on a verdict of conviction; and the power may be exercised by the court within its discretion even where the accused has partially served his term of imprisonment."

"When a defendant has pleaded guilty in a criminal case, the general rule is that it is within the discretion of the trial court to permit the plea to be withdrawn on motion." Many authorities are cited under this announcement of the rule from other states. Our own state has spoken on this thought more than one time. In the case of Mastronada v. State, 60 Miss. 86, this court adhered to this rule, while in this case the same was affirmed upon the idea that appellant in that case did not allege in his supporting affidavit to his motion that he was not guilty of the charge laid, but it seems that if he had so alleged upon his affidavit alone, that the decision of the court would have been otherwise.

The court's attention is further and especially called to the case of Deloach v. State, 77 Miss. 691, 27 So. 618, in which the court held that it was within the discretion of the court to permit one to withdraw his plea of guilty, but that the same was a judicial discretion, which should always be exercised in favor of innocence and liberty. In this same case we have the following language: "That the plea of guilty is often made because the defendant supposes that he will thereby receive some favor of the court in the sentence; it is the English practice not to receive such plea unless it is persisted in by the defendant after being informed that such plea will make no alteration in the punishment." In this same case the court had this further statement, "all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits if possible." The law favors a trial upon the merits by a jury, and this is all that appellant has asked, which have been denied him by the court below. Will this court grant appellant a trial by a jury, as favored by the law? Manifestly he is entitled to a trial by a jury under the authority cited.

The court's attention is further called to the case of the State v. Calhoun (Kansas Case), 34 Am. St. Rep. 141. In this case the defendant entered pleas of guilty to two charges (just as the case at bar), and under a hearing of error by writ of coram nobis the said pleas of guilty were set aside and the defendant permitted to go before a jury of his country with his causes of action. These pleas of guilty were entered because the defendant feared mob violence, just as the case at bar and in that case there was no more evidence of mob violence than is shown in this case. With the law favoring beyond question a trial on the merits of any criminal case, will the court deny this defendant this right granted to him by the organic law of the state? The withdrawal of a plea of guilty should not be denied in any criminal prosecution, where it is evident that the ends of justice will be subserved by permitting the substitution of the plea of not guilty. See American and English Annotated Case, Vol. No. 8, from 235 to 240. It being the pronounced policy of our law, that all criminal cases be tried on their merits before a jury and this being all that appellant asks, we respectfully submit that this case should be reversed and the appellant permitted to go before a jury with his cause.

R. M. Bordeaux, assistant attorney-general, for the state.

As we understand this record the only question presented for decision on the appeal is; "did the trial judge, in the court below, abuse his judicial discretion in overruling appellant's motion?

The learned trial judge in his order, overruling appellant's motion, states that appellant was given every opportunity to have a fair trial and that he was permitted by the court to make a full and complete statement as to how the shooting occurred, and his own statement in open court showed that he was guilty without a mitigating circumstance.

Counsel for appellant assails the propriety and denies the force and validity of an unsworn and gratuitous statement by the circuit judge in making his order.

We submit, however, that if the showing on this motion made on behalf of the state is unsatisfactory, then the showing on this motion made on behalf of the appellant is equally unsatisfactory in this, to wit: the defendant in the court below introduced no evidence...