Two meritorious questions are discussed in defendant's brief: (1) Was defendant's plea of guilty "made freely, with full knowledge of the nature of the accusation, and without undue influence?"; (2) Did the sentencing judge, as required by statute (3 Comp. Laws 1929, § 17328* [Stat. Ann. § 28.1058]), make investigation respecting the nature of the case and the circumstances of the plea of guilty and become satisfied that it was freely and understandingly made, without undue influence?
To the statement of facts in Mr. Justice BUSHNELL'S opinion should be added the following:
The information charged defendant with the offense of breaking and entering in the nighttime with intent to steal and stealing property of a value of $500.8224 Upon arraignment in circuit court the judge explained to defendant the nature of the offense charged against him and advised him that he had the privilege of pleading not guilty or standing mute, in which case the court would enter a plea of not guilty, and that the case, in either event, would be put down for trial, or that defendant might plead guilty, in which event there would be no trial, but an investigation by the probation officer, after which sentence would be imposed. Thereupon the following occurred:
"The Court: I ask you in the light of that how you wish to plead?
"Defendant Crane: May I ask one thing, I think there is a mistake there in the figures. I think it should be $50 instead of $500. I intend to make restitution, I want that corrected, but I am guilty of the charge.
"The Court: So far as the offense is concerned it is immaterial whether $50 or $500, but the exact figure will be checked undoubtedly when the probation officer checks with you.
"Defendant Crane: Guilty.
"The Court: All right, a plea of guilty will be received."
The following appears in the opinion of the sentencing judge denying defendant's first motion for leave to withdraw the plea of guilty and to file a motion for new trial:
"When defendant pleaded guilty on March 29th, the order was made in open court, in his presence, that he was being remanded back to jail to await investigation and report by the probation officer. A most thorough report was made and furnished the court by the probation officer. More than two weeks elapsed after pleaand before sentence. The court not only conferred privatelywith defendant to assure itself that his plea was knowingly andfreely made, but the court also held a joint conference with the probation officer, the prosecuting officer, and a representative of the sheriff's office having this case in charge.
"The investigation made by the court disclosed not only his guilt in the instant case, but that he also used a small child in its accomplishment, evidenced by finger prints of the child on the broken window pane, and the confirming statement of the child, his child, who had travelled with him on his depradations from Texas to Michigan. He made no attempt to deny his guilt; his only plea was for mercy because
of his family, and that he be not sentenced as a third or fourth offender. * * *
"He (defendant) gave a statement to the Berrien county officers, which was taken stenographically, question and answer, by the official county stenographer.
"That statement reveals why he wanted to be assured that he would be charged with B E nite time, and charged with one offense only, and which was not to be `supplemented nor * * * beyond which might be given any first offender.'
"That statement shows that he had committed a string of innumerable breaking and enterings from Texas to Michigan, with detours into Colorado, Iowa, and Indianapolis, Indiana. More light is thrown upon his desire for assurance to be treated as a first offender by his FBI finger print record, which is set forth in the report of investigation made by the probation officer of Berrien county in connection with the offense here involved, which record discloses that in 1926 in Detroit he was given 1-to-10-year sentence for a felony, U.D.A.A.; that in 1930, from Jackson, Michigan, he was given a 5-to-14-year sentence for forgery; that in 1935 in Oklahoma, he was given 3 1/2 years for forgery, 2d degree; that in February, 1937, the St. Louis (Missouri) authorities returned him to Jackson prison; that in March, 1937, he was sentenced from Jackson, Michigan, to 7 1/2 to 15 years for escaping prison; that in August, 1940, he was sentenced from Marquette, Michigan, for 3 to 6 years for prison escape."
After the death of the sentencing judge defendant filed a second motion for leave to withdraw the plea of guilty and to file a motion for new trial, denial of which is before us on this appeal. At the hearing on that motion the Berrien county sheriff, Kubath, testified concerning defendant's confession of the offense with which he was charged, as follows:
"And he at first denied ever being at the station or taking anything from the station, but at the time
of his arrest, he had a cash register, and also some other articles taken from this gas [oline?] station and when he was confronted with that evidence he later on admitted to me at the jail he had put his little boy in the station, broken a window and put the boy in the station and the boy went around to the front door and open the door so he could get into the station and he had taken this cash register along with other articles out of the station and put them in his car and headed toward Kalamazoo or Battle Creek with them."
The statement in the sentencing judge's opinion that he conferred with defendant before sentence and assured himself that defendant's plea was knowingly and freely made is not to be lightly disregarded. People v. Palm, 245 Mich. 396. It is assailed by a defendant, with a record as above detailed, who apparently claims a conspiracy by and between State police officers, the sheriffs' departments of two counties, an attorney, a prosecuting attorney, a municipal judge and a circuit judge to railroad him to prison. Concerning his claim in that regard we quote from plaintiff's brief (figures in parentheses refer to pages in the printed record):
"Defendant in his oral testimony claimed that commencing with his arrest in Marshall on March 1, 1943, he was threatened and brow-beat by two officers from Kalamazoo (25); that Detective Beck threatened to hang a murder on him (26); that the Marshall officers refused to let him consult an attorney (27), that Detective Beck suggested he fabricate a criminal confession (27); that his acquaintance and perhaps attorney, * * * who witnessed defendant's exhibit A at the request of defendant, was drunk at the time he witnessed it even though * * * (he), by defendant's own testimony, had come to the Marshall jail at the request of defendant (28), that Sheriff Hastings of Berrien county kept defendant in a padded cell for three days and
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Two meritorious questions are discussed in defendant's brief: (1) Was defendant's plea of guilty "made freely, with full knowledge of the nature of the accusation, and without undue influence?"; (2) Did the sentencing judge, as required by statute (3 Comp. Laws 1929, § 17328* [Stat. Ann. § 28.1058]), make investigation respecting the nature of the case and the circumstances of the plea of guilty and become satisfied that it was freely and understandingly made, without undue influence?
To the statement of facts in Mr. Justice BUSHNELL'S opinion should be added the following:
The information charged defendant with the offense of breaking and entering in the nighttime with intent to steal and stealing property of a value of $500.8224 Upon arraignment in circuit court the judge explained to defendant the nature of the offense charged against him and advised him that he had the privilege of pleading not guilty or standing mute, in which case the court would enter a plea of not guilty, and that the case, in either event, would be put down for trial, or that defendant might plead guilty, in which event there would be no trial, but an investigation by the probation officer, after which sentence would be imposed. Thereupon the following occurred:
"The Court: I ask you in the light of that how you wish to plead?
"Defendant Crane: May I ask one thing, I think there is a mistake there in the figures. I think it should be $50 instead of $500. I intend to make restitution, I want that corrected, but I am guilty of the charge.
"The Court: So far as the offense is concerned it is immaterial whether $50 or $500, but the exact figure will be checked undoubtedly when the probation officer checks with you.
"Defendant Crane: Guilty.
"The Court: All right, a plea of guilty will be received."
The following appears in the opinion of the sentencing judge denying defendant's first motion for leave to withdraw the plea of guilty and to file a motion for new trial:
"When defendant pleaded guilty on March 29th, the order was made in open court, in his presence, that he was being remanded back to jail to await investigation and report by the probation officer. A most thorough report was made and furnished the court by the probation officer. More than two weeks elapsed after pleaand before sentence. The court not only conferred privatelywith defendant to assure itself that his plea was knowingly andfreely made, but the court also held a joint conference with the probation officer, the prosecuting officer, and a representative of the sheriff's office having this case in charge.
"The investigation made by the court disclosed not only his guilt in the instant case, but that he also used a small child in its accomplishment, evidenced by finger prints of the child on the broken window pane, and the confirming statement of the child, his child, who had travelled with him on his depradations from Texas to Michigan. He made no attempt to deny his guilt; his only plea was for mercy because
of his family, and that he be not sentenced as a third or fourth offender. * * *
"He (defendant) gave a statement to the Berrien county officers, which was taken stenographically, question and answer, by the official county stenographer.
"That statement reveals why he wanted to be assured that he would be charged with B E nite time, and charged with one offense only, and which was not to be `supplemented nor * * * beyond which might be given any first offender.'
"That statement shows that he had committed a string of innumerable breaking and enterings from Texas to Michigan, with detours into Colorado, Iowa, and Indianapolis, Indiana. More light is thrown upon his desire for assurance to be treated as a first offender by his FBI finger print record, which is set forth in the report of investigation made by the probation officer of Berrien county in connection with the offense here involved, which record discloses that in 1926 in Detroit he was given 1-to-10-year sentence for a felony, U.D.A.A.; that in 1930, from Jackson, Michigan, he was given a 5-to-14-year sentence for forgery; that in 1935 in Oklahoma, he was given 3 1/2 years for forgery, 2d degree; that in February, 1937, the St. Louis (Missouri) authorities returned him to Jackson prison; that in March, 1937, he was sentenced from Jackson, Michigan, to 7 1/2 to 15 years for escaping prison; that in August, 1940, he was sentenced from Marquette, Michigan, for 3 to 6 years for prison escape."
After the death of the sentencing judge defendant filed a second motion for leave to withdraw the plea of guilty and to file a motion for new trial, denial of which is before us on this appeal. At the hearing on that motion the Berrien county sheriff, Kubath, testified concerning defendant's confession of the offense with which he was charged, as follows:
"And he at first denied ever being at the station or taking anything from the station, but at the time
of his arrest, he had a cash register, and also some other articles taken from this gas [oline?] station and when he was confronted with that evidence he later on admitted to me at the jail he had put his little boy in the station, broken a window and put the boy in the station and the boy went around to the front door and open the door so he could get into the station and he had taken this cash register along with other articles out of the station and put them in his car and headed toward Kalamazoo or Battle Creek with them."
The statement in the sentencing judge's opinion that he conferred with defendant before sentence and assured himself that defendant's plea was knowingly and freely made is not to be lightly disregarded. People v. Palm, 245 Mich. 396. It is assailed by a defendant, with a record as above detailed, who apparently claims a conspiracy by and between State police officers, the sheriffs' departments of two counties, an attorney, a prosecuting attorney, a municipal judge and a circuit judge to railroad him to prison. Concerning his claim in that regard we quote from plaintiff's brief (figures in parentheses refer to pages in the printed record):
"Defendant in his oral testimony claimed that commencing with his arrest in Marshall on March 1, 1943, he was threatened and brow-beat by two officers from Kalamazoo (25); that Detective Beck threatened to hang a murder on him (26); that the Marshall officers refused to let him consult an attorney (27), that Detective Beck suggested he fabricate a criminal confession (27); that his acquaintance and perhaps attorney, * * * who witnessed defendant's exhibit A at the request of defendant, was drunk at the time he witnessed it even though * * * (he), by defendant's own testimony, had come to the Marshall jail at the request of defendant (28), that Sheriff Hastings of Berrien county kept defendant in a padded cell for three days and
three nights without anything to eat (31), that Sheriff Hastings refused to let defendant see his wife (32), that Judge Hammond of the municipal court of the city of Benton Harbor, refused to inform defendant of the charge upon which he was brought before said magistrate (32), that Judge Hammond permitted defendant to be brought before him without a complaint or warrant having been prepared or executed (32, 33), that Prosecuting Attorney Karl Zick immediately following defendant's arraignment in circuit court, took away from defendant his copy of the information (34), that Judge Evans, just prior to sentence and in a private interview, led defendant to believe he was to receive a sentence of 1 to 15 years by doodling with a pencil (34, 35), and that Chief Deputy Sheriff Kubath of Berrien county obtained information from defendant by threatening him with a beating (41)."
An examination of defendant's testimony substantiates the statement in the trial court's opinion that:
"The defendant, to put it mildly, is not to be trusted to tell the truth whenever it will conflict with his own purposes or desires."
Defendant, 41 years of age, not only was a man with much experience with crime and criminal proceedings in the courts, but had graduated from high school, had 2 years in college, attended a medical school, and, as he put it, "had 11 years training in various prisons around the country."
Let it be said at the outset that defendant makes no claim that his plea was not understandingly made. Was it made freely, voluntarily and without undue influence, or was it made, as defendant claims, "under the compulsion of defendant's exhibit A"? The exhibit did not call for a plea of guilty to any charge, but only a written statement regarding defendant's recent crimes. The exhibit, or so-called
deal with State police detective Beck, did not serve to persuade defendant to give such a statement to Beck. On the contrary, after he had not seen Beck for a week and had denied his guilt of the offense to the Berrien county sheriff, he finally made his confession of recent crimes and admitted his guilt of the offense here involved only after he was confronted by the sheriff with the stolen articles found in defendant's automobile at the time of his arrest; and concerning this confession, he testified:
"As a matter of fact I gave this statement of my so-called recent crimes to Mr. Kubath (sheriff), as a result of his question."
From this it would appear that exhibit A not only did not induce defendant to plead guilty, but was not even the inducement to his making a confession of his recent crimes. Three weeks intervened between his confession and his arraignment in circuit court, at which time this well-educated defendant, with many years' experience with crime and court proceedings, challenged the figures in the information and wanted them changed as to the value of the stolen goods, from $500 to $50, because, as he said, he wished to make restitution. When assured at that point that the figures made no difference as to the nature of the offense, he thereupon pleaded guilty as charged and was sentenced some 2 weeks thereafter. During the 5 weeks intervening between his confession and sentence he never protested innocence or claimed that he was the victim of a deal or frame-up. The sentencing judge's opinion positively states that as a result of his investigation and a conference with defendant he became satisfied that the plea of guilty was made freely and voluntarily. The facts of the case are not compatible with the idea that defendant acted under the compulsion of exhibit A or under any undue influence other than
that of his knowledge that he was guilty and that the officers had the proofs.
Did the sentencing judge make proper investigation respecting the nature of the case and the circumstances of the plea and become satisfied that it was freely made without undue influence, and was he justified in being so satisfied by what his investigation disclosed? The judge answered in the affirmative. No transcript was made of his private conference with defendant and, except for defendant's claims, we cannot know what transpired, death having sealed the lips of the judge. We do know, however, that before sentence the judge caused an investigation to be made and that he knew or learned the following: That the articles stolen from the station in question were found in defendant's possession when he was arrested; that defendant, experienced in crime and criminal proceedings, had confessed the commission of several offenses, including the one charged; that in his confession he had implicated his own child; that a window pane, broken to effect entrance into the station, bore the fingerprints of the child; that the child confirmed the father's statement as to how the station had been entered; that defendant objected to the allegation in the information that the property stolen from the station was of a value of $500, claiming that it should be $50 and that he wanted the figure corrected because he intended to make restitution; that defendant had been in custody for 3 weeks after confession and before arraignment in the circuit court and another 2 weeks thereafter before sentence, during all of which time he made no complaint of compulsion or undue influence; that the judge had conferred with defendant privately and was satisfied from what he learned from him that his plea was free and voluntary. What further investigation does the statute require? What more should be considered
necessary to justify the judge in becoming satisfied that the plea of guilty was made, not because of undue influence, but voluntarily, because defendant, an experienced criminal familiar with his rights, knew he was guilty and that the officers could prove it?
Defendant protests that the question of his guilt or innocence is not before us, but only whether his plea was voluntarily made; that, hence, no consideration may be given to his previous record or the proofs of his guilt of the offense charged. But these are material to a determination of why defendant pleaded guilty. In making that determination the statute requires the judge to make investigation respecting the nature of the case (3 Comp. Laws 1929, § 17328) and "to examine carefully into the facts of the case." Edwards v. People, 39 Mich. 760.
The granting of leave to withdraw a plea of guilty after sentence rests in the sound discretion of the trial judge, subject to review only for an abuse of such discretion. People
v. Goldman, 245 Mich. 578; People v. Vasquez, 303 Mich. 340. There are a number of cases in which we have considered the question of whether a trial court did abuse its discretion in denying a defendant's motion, made after sentence, for leave to withdraw the plea of guilty on the grounds that the plea had been induced by undue influence. We quote from the syllabi of 4 such cases:
"On appeal from denial of motion to set aside sentences for statutory rape, allow change of plea to not guilty and grant a new trial, claim that cases were hurried through court without opportunity to consult an attorney and that plea of guilty was made under the assurance of the assistant prosecuting attorney that such would be their best course held, untenable in view of the elapse of a week between the entry of their pleas and sentence during
which time their relatives and friends had access to them, their statement to the court that no inducement to plead guilty had been made to them, and investigation made at request of court who was fully informed thereby as to their characters." People v.Skropski (syllabus), 292 Mich. 461.
"There was no abuse of the court's discretion in denying defendant's motion for leave to withdraw his plea of guilty after sentence, on the ground that he had been induced to enter said plea of guilty on his counsel's advice that the penalty would be less severe; the record showing that defendant's examination by the trial judge to determine whether his plea of guilty was voluntarily made was complete, full, and searching, and leaving no doubt that it was voluntarily made." People v. Goldman
(syllabus), supra.
"Where defendants charged with criminal offenses on two occasions in open court solemnly averred that there was no duress or undue influence used in inducing them to change their pleas of not guilty to guilty, the court properly denied a motion for new trial based upon their affidavits that said change of plea was not freely made but was induced by fear, by `third degree methods,' and by a promise that the informations would be so amended as to charge defendants with a lesser offense." People
v. Williams (syllabus), 225 Mich. 133.
"Where defendant, jointly charged with her paramour with the murder of her husband, entered a plea of guilty, the court made investigation pursuant to 3 Comp. Laws 1915, § 15830,** and became satisfied that the confession and plea had been freely made, with full knowledge of the nature of the accusation and without undue influence, a motion to vacate the judgment and plea and for a new trial, based on affidavits of herself and codefendant that she was not guilty, and that she confessed while under
his dominating influence, was properly denied." People v.Kobrzycki (syllabus), 242 Mich. 44.
In each of these 4 cases we held that, in view of the trial court's investigation respecting the nature of the case and the circumstances of the plea of guilty and its determination that the plea was freely made, and of the fact that such investigation disclosed facts eloquent of defendant's guilt, and in view of the lapse of time between arraignment and sentence which afforded the defendant ample time to change his plea before sentence, it was not an abuse of discretion on the part of the trial court to deny the motion, made after sentence, to permit withdrawal of plea of guilty, despite the claims that such plea was induced in theSkropski Case by assurances by the prosecuting attorney that that would be defendant's best course, in the Goldman Case by counsel's advice that the penalty would be less severe, in theWilliams Case by third degree methods and a promise to reduce the charge, and in the Kobrzycki Case by the dominating influence of defendant's codefendant paramour. Thus, in the instant case, the utter lack of any showing that anyone urged defendant to plead guilty or asked him to do anything other than make a written statement concerning his recent crimes, the fact that defendant had had much previous court experience and that he insisted that the figures in the information be changed, his expressed desire to make restitution, the convincing proofs of defendant's guilt of the offense charged, the trial judge's private conference with defendant and assurance therefrom that the plea was freely and voluntarily made, the lapse of time between Beck's promise to defendant and his ultimate confession to the sheriff and between that confession and his circuit court arraignment and between arraignment and sentence, and the lack of
protests or objections by defendant during the 5-week period between confession and sentence, convince us that the trial judge was justified in concluding that the plea of guilty was freely and voluntarily made, and that it was not an abuse of discretion to deny defendant's motion.
The order of the circuit court denying defendant's motion for leave to withdraw plea of guilty and to file motion for new trial is affirmed.
BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred with DETHMERS, J.
* 4 Comp. Laws 1948, § 768.35. — REPORTER.
8224 See Act No. 328, § 110, Pub. Acts 1931 (4 Comp. Laws 1948, § 750.110 [Comp. Laws Supp. 1940, § 17115-110, Stat. Ann. §28.305]). — REPORTER.
** This section has been re-enacted and is now 4 Comp. Laws 1948, § 728.35. — REPORTER.