State v. Poynter

205 P. 561, 34 Idaho 504, 1921 Ida. LEXIS 142

• Court: Idaho Supreme Court
• Decided: October 31, 1921
• Status: Published

Opinions

DUNN, J.-

Appellant was charged by the prosecuting attorney of Bannock county of the crime of being a persistent violator of the prohibitory law of this state and on trial was convicted and sentenced to serve a term of not less than one nor more than two years in the state penitentiary. He has appealed from said judgment.

The statute under which appellant was charged and convicted reads as follows:

“See. 2625. Punishment for Second Offense. A person having once been convicted of a violation of any of the provisions of this article except section 2622, who thereafter violates the provisions hereof, shall be considered a persistent violator of this article and shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the state penitentiary at hard labor for not less than one year and not more than two years.”

The information charged that on or about the eighteenth day of May, 1918, appellant wilfully and unlawfully transported certain intoxicating liquors in said county, and further charged that prior to the commission of said offense the appellant was on March 9, 1917, in the district court of said county, convicted on a plea of guilty of the crime of transporting intoxicating liquor in said county and that the judgment of said court against appellant on said conviction was pronounced and rendered on said ninth day of March, 1917.

The first assignment of error that requires notice is based upon the court’s denying appellant’s motion to dismiss the action and discharge the appellant, for the reason that appellant was not tried at the first term of court after the filing of the information. Appellant relies on the following statute:

“See. 9176. When Action may be Dismissed. The court unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases: ....

“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the- next term of the court in which the indictment is triable, after it is found.”

No exception was taken by appellant to this ruling of the court. Subsequently when the court was about to call a jury for the trial of the case appellant sought to renew the motion to dismiss and this application was by the court denied, to which ruling appellant excepted, but nothing is brought here in the record upon which this court can hold that error was committed by the trial court.

Appellant also complains because the deputy sheriff who arrested him about 11 o’clock at night while appellant, according to the testimony of the deputy sheriff, was in the act of unloading several cases of whisky from his automobile, was permitted to testify for what purpose he was in the alley where the arrest was made, and also because the court permitted the said deputy sheriff and the sheriff to testify that at the time of the arrest appellant did not deny that the whisky was his. In answer to the question as to the purpose of his being in the alley, the deputy sheriff simply said that he was “waiting for a party to drive up there.” Evidently he had heard something that led him to believe that by waiting at that point he might be able to discover the commission of a crime, but there was no testimony as to what information he had or from whom he had received it. The question and answer were proper. We know of ho rule of evidence that would exclude testimony as to the conduct of defendant at the time of his arrest, when for the first time he was confronted with the criminal charge.

In Musfelt v. State, 64 Neb. 445, 90 N. W. 237, at page 238, the court says:

“Not only were the actions of the parties in their relation to each other a proper subject for inquiry, and the introduction of evidence thereon, but their demeanor and conduct when accused, while not under restraint, as well as what they say, or their silence, may be shown in evidence as inculpatory circumstances to be weighed and considered by the jury in determining the truth of the charge preferred against them.”

See, also, State v. Hill, 134 Mo. 663, 36 S. W. 223, at page 225; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342; People v. Byrne, 160 Cal. 217, 116 Pac. 521; State v. Mortensen, 26 Utah, 312, 73 Pac. 562, 633; Underhill’s Cr. Ev., sec. 122; Greenleaf on Evidence, sec. 197.

The most serious contention of appellant for a reversal of the judgment is based upon the former conviction alleged in the complaint, his contention being that said judgment is void; first, because the plea of guilty in that case was not entered by the appellant in person, but by counsel; and, second, because the judgment therein imposed a fine only when it should have imposed, in addition to the fine, imprisonment in the county jail.

C. S., sec. 8848, provides that if the indictment is for a felony, the defendant must be personally present, but if for a misdemeanor he may appear upon the arraignment by counsel. The arraignment consists in reading the indictment or information to the defendant and delivering to him a copy thereof and ashing him whether he pleads guilty or not guilty to such indictment or information.

Sec. 8881 provides that a plea of guilty can be put in by the defendant himself only in open court unless the indictment or information is against a corporation, in which ease it may be put in by counsel.

The statutes above quoted appear to be somewhat in conflict as to the manner in which a plea of guilty may be put in by a defendant charged with a misdemeanor. Assuming, however, that it is the intention of the law of this state that a plea of guilty shall be entered only by the defendant himself, it does not follow that he may not waive such right. The purpose of that statute is to prevent the entry of a plea of guilty, except under circumstances making it perfectly clear to the court that a defendant enters such plea voluntarily, that he understands the full significance of his plea of guilty and, with such understanding, is willing to take the consequences of such plea. And if a defendant (as we have a right to assume from the record was done in this ease) has expressly authorized his counsel to withdraw his plea of not guilty and, in the absence of the defendant, to enter for him a. plea of guilty, and it does not appear to the court that he was in any sense misled, or that he was induced in any way to enter a plea of guilty when he did not intend to do so, what sound reason can be found for holding that he has not waived his right to plead guilty in person, or for permitting him to assert that such plea was not a valid one under the law?

An instructive ease holding that a defendant may waive •his right to plead in a particular manner is that of State v. Blake, 5 Wyo. 107, 38 Pac. 354. In that case John C. Conway, who was indicted for murder in the first degree, appears to have pleaded not guilty. On the trial the plea was withdrawn and a plea of guilty of murder in the second degree was accepted; and on this he was sentenced. He set up the claim that, not having orally pleaded guilty, the plea was void and asked a writ of mandamus requiring the trial judge to insert in the bill of exceptions an affidavit tending to support a motion to amend the record. He also applied for a writ of error. The writ of mandamus was denied and the petition for a writ of error dismissed. Stated as briefly as possible, the facts with regard to the plea of guilty are as follows:

“That during the trial of the cause the leading attorney for the defense suddenly left the county without notice, and was found to have abandoned the cause. At the urgent request of the other attorneys for the defendant, the court appointed an attorney to assist them, who acted with them until sentence was pronounced. After the prosecution had introduced its testimony in chief and rested, counsel for the defendant requested time for consultation, which was granted, and the judge of the court was informed that a conference between opposing counsel was called to act upon a proposition of the defendant to plead guilty to murder in the second degree. The attorney appointed by the court to assist counsel for defendant informed the court that there was practically no testimony on behalf of the defendant which would affect the evidence for the prosecution, and that the defendant ought to plead guilty to murder in the second degree, and would do so. The judge consented that this plea might be entered at the opening of the court on the following morning as the evidence, in the opinion of the judge, was sufficient to warrant a conviction of such a crime; and on the following day, in the presence of the court, the defendant, and his counsel, the attorney under special appointment of the court for the defendant, stated to the court his reasons for the withdrawal of the plea and the substitution of the one agreed upon. At the close of his remarks the judge of the court said: ‘Does the defendant withdraw his plea of not guilty, and enter a plea of guilty of murder in the second degree?’ The defendant was sitting with his face turned toward the judge and was ‘sobbing and weeping to an unusual degree.’ "When his attorney said that such was the plea, the defendant ‘nodded his head.’ The plea was then formally accepted by the court, and the jury was discharged. No objection was made to the action of the court in this regard, but exceptions were timely interposed and reserved' to the subsequent adverse rulings of the court on the various motions to amend the record and on the motion for arrest of judgment.”

In discussing this case the supreme court of Wyoming says:

“According to the statement of the judge, the defendant inclined or ‘nodded’ his head in response to the question put by the court asking if he desired to withdraw his plea of not guilty and plead guilty to murder in the second degree. The affidavits presented to the court state that the defendant made no personal plea and was asked nothing by the court except as to his age, to which he replied, ‘Twenty-nine, going on thirty.’ They do not state that the defendant misunderstood the proceedings of the court, or was misled by anything that was said or done by his counsel or the court; neither is there any intimation that counsel had no authority to act for defendant. It is certain that no objection was interposed to the action of the court in accepting the plea and discharging the jury.....

“It might well be held that the defendant waived his rights, even if he did not make a personal plea upon the withdrawal of his former plea, by his failure to object at the proper time to the proceedings of the court. Waiver is analogous to estoppel, and applies to criminal as well as to civil proceedings. Says Mr. Bishop: ‘If the defendant has consented to any step in the proceedings, or if it has been taken at his request, or if he did not object to it at the proper time when he might, he cannot afterwards complain of it, however contrary it was to his constitutional, statutory, or common-law rights.’ 1 Bish. Cr. Proc. (3d ed.), 118.”

In this case the record shows that on Feb. 21, 1917, C. D. Smith, counsel for appellant, entered for appellant a plea of not guilty to the information, and that on Feb. 26, 1917, the same counsel withdrew the plea of not guilty and entered for appellant a plea of guilty as charged.

The record does not affirmatively show that appellant was present when his counsel entered for him the plea of guilty, but it nowhere appears affirmatively in the record that he was not present. Neither does it appear anywhere in the record that the plea of guilty was not entered by appellant’s counsel by his express authority. Surely, in the effort to have the judgment based upon that plea declared void, if it could truthfully be claimed that such authority was not given we would be confronted with that claim. No such claim being made, we assume that the plea was expressly authorized by appellant. If authorized by him, why should he be heard to complain almost two years after the former judgment, especially since the complaint did not come until he was caught in the commission of another crime!

On March 9, 1917, the record shows the following proceedings at the time judgment was pronounced by the late Judge Guheen:

“Now, on this 9th day of March, 1917, the County Prosecuting Attorney, with the defendant came into Court. The defendant was duly informed by the Court of the nature of the information found against him for the crime of Transporting Liquor in a Prohibition District Committed on the 24th day of January, 1917, of his arraignment and plea of Guilty as charged on the 9th day of March, 1917. The defendant was then asked by the Court if he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had none. And no sufficient cause being shown or appearing to the court:

“Now, therefore, The said defendant having been convicted of the crime of Transporting Liquor in a Prohibition District, it is hereby ordered, considered and adjudged that the said defendant, Henry Poynter, be fined in the sum of $300,00 and in the default of the payment of said fine that he be confined in the County Jail of Bannock County at the rate of one day for each $2.00 that remains unpaid.”

It will thus be seen that if the defendant was not present at the time this plea of guilty was entered by his counsel, and if he did not at that time personally assent to such plea, he was on March 9, 1917, personally present in court and was advised by the court that he had entered a plea of guilty to this information and at that time, after having been asked by the court if he had any legal cause to show why judgment should not be pronounced against him, he replied that he had none. If, as we hold, the right to enter this plea of guilty in person can be waived by defendant, certainly the failure of defendant to object when the opportunity was given to him by the court at the time judgment was pronounced ought to be regarded as a waiver of such right.

It has been repeatedly held that the right of a defendant to be arraigned and enter his plea was waived by his proceeding to trial without objection, where it appeared that in such trial he was accorded every right that he could have had under a plea of not guilty. Many cases to this effect are collected in the notes under State v. Walton, 50 Or. 142, 91 Pac. 490, 13 L. R. A., N. S., 811, 813, and Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L. R. A., N. S., 664.

But, assuming for the moment that the right cannot be waived, there is no law that requires the plea of guilty to be entered only at the time of formal arraignment. It frequently happens that during the progress of the trial of a defendant on a plea of not guilty before the trial is ended the defendant signifies a desire to withdraw the plea of not guilty and enter a plea of guilty, and we have never heard it questioned that valid entry of such a plea could be had at such time. When the defendant was present in person at the pronouncing of judgment and was informed by the court that he had pleaded guilty to the charge of transporting liquor and was asked by the court if he had any legal cause to show why judgment should not be pronounced against him and he replied that he had none, we think that answer might, in every substantial particular, be properly regarded as a plea of guilty in person.

No question was raised in any manner by this appellant as to the validity of the plea entered for him in February, 1917, until January, 1919, when he was brought to trial for the commission of another offense and was confronted with a term in the penitentiary. The former judgment provided for imprisonment in the county jail in case his fine was not paid, and there can be little, if any, doubt that he further assented to said judgment by prompt payment.

The contention of appellant that the former judgment is void because the trial court inadvertently omitted to give him at least 30 days’ imprisonment in the county jail in addition to the fine imposed is appropriately answered by the language of the circuit court of appeals holding such a judgment valid:

“One other supposed error is relied upon, which is that the court did not impose a fine in addition to the imprisonment. The counsel point to the letter of the statute which reads that the punishment shall be by fine and imprisonment. We think it is clear from the context that ‘and’ was used in the sense of ‘or,’ but if not the defendant is not harmed by this omission and the punishment imposed. An adherence to the letter of the statute, as the defendant claims should have been done, would only add to the penalty and his complaint in that regard is absurd.” (Bartholomew v. United States, 177 Fed. 902, at page 906, 101 C. C. A. 182.)

No specification has been made in appellant’s brief of the particulars in which it is claimed that the evidence is insufficient* to support the verdict. For this reason this alleged error is not before us. We have examined the other errors so far as they have been properly presented to this court and think they are without merit.

The provisions of C. S., secs. 9084 and 9191, as to technical errors and defects not affecting the substantial rights of the parties require that the judgment of the trial court be affirmed, and it is so ordered.

McCarthy, J., concurs.