Champion v. People , 124 Colo. 253 ( 1951 )

Mr. Justice Holland

specially concurring.

Since I do not dissent to the majority opinion, it is, therefore, apparent that I concur in the result but am not in accord with some statements in the opinion, and further believe that the opinion does not specifically determine some questions involved, I am submitting the following as a specially concurring opinion, which my study convinces should have been the majority opinion of the court.

I refer to plaintiff in error as defendant.

Error is assigned to the denial of defendant’s motion to vacate judgment and for leave to withdraw pleas of guilty filed approximately seven or eight months after defendant had entered pleas of guilty to an information containing one felony charge and another a misdemeanor.

On the arraignment had a few days after the arrest of defendant, who appeared without counsel, the pleas were entered and some testimony taken by the court. The court advised defendant that he was entitled to apply for probation and the matter was continued several days and probation granted.

We are without a full transcript of the probation proceedings and the terms of the probation are not before us, although the record shows same were duly filed in the case.

On this unsatisfactory record, we are concerned only with the regularity of defendant’s arraignment and the sufficiency of the testimony taken by the court; also a consideration of the apparent probation order as well as the suggestion of the Attorney General, tantamount to a confession of error, in which a fine sense of duty is disclosed and highly commendable.

Here, as was said in Kelley v. People, 120 Colo. 1, 206 P. (2d) 337, “* * * an appraisal of the totality of facts * * *” is required.

On the night of July 4, 1949, an altercation occurred between defendant and one Edgar Heselbarth, Jr., during an attempt to separate their two automobiles which had become entangled in some manner, presumably in parking. It is not certain from the evidence as to which was the assailant. The principal witness testifying (not in a trial on the issues, but in aid of the court in determining the penalty) in substance, stated that while attempting to help disentangle the cars, he knocked the defendant down “* * * this boy Ed got into a fracas and I stopped it and we got started out lifting it again and this man came over and hit Ed again. And so I knocked the boy down and told him, ‘Now, stay over away from this until we get this straightened up.’ There was nothing wrong with the cars. It was all a misunderstanding all the way through. If anything happened before we arrived, I don’t know. But at the time we got there there was nothing wrong. I stopped Mr. Champion from continuing the fight. And the next thing he ran up and hit this Mr. Heselbarth which caused him to break his glasses and injure his eye. I seen him run up and hit Ed, and it was too dark to see if he hit him with anything or not. I don’t really think he did. I think it was just his fist. But you could hear glass shatter and you knew he was hit in the eye.”

“You saw the blow struck? A, Yes, sir. Q. And that was after the first fight had ceased and he came back; is that correct?” The answer of the witness was not responsive. Shortly thereafter the officer arrived and it seems took the keys to defendant’s car. On. the next day the sheriff requested defendant to come down to the hotel and, as defendant states, to get his keys. On appearing, the sheriff advised defendant that the Heselbarth boy had a bad injury to his eye and that he was taking defendant to jail. Defendant was in jail about thirty hours or more and finally released on bond.

It is very apparent, and not explicitly denied, that the deputy district attorney in talking to defendant, not as deputy district attorney, but as a lawyer, told him there was no need to employ counsel and that if he would plead guilty to both counts he would get him probation. This occurred on at least two occasions, once in person and again by telephone, and is supported by the separate affidavits of defendant and his mother filed in connection with the motion to vacate the judgment, and also further shown by the testimony of defendant and his mother at the hearing on the motion. It appears therefrom that the district attorney advised the mother along the same line that he had advised and promised defendant. The district attorney testified that he told defendant that when a defendant has a clean record he was entitled to apply for probation; and that it was up to the court, but was usually granted.

The information was filed on the 7th of July. The first count was an attempt to charge a felony in the following language: “* * * feloniously make an assault in and upon one Edgar Heselbarth, Jr., with intent to disfigure and disable the body of the said Edgar Heselbarth, to-wit: an eye of Edgar Heselbarth, Jr., * * The second count charged assault and battery in the following language, “* * * unlawfully assault, beat, strike, bruise and wound the body of Edgar Heselbarth, Jr., contrary * * :¡: >>

Upon the request of the deputy district attorney, defendant appeared in court on July 9 without counsel, and contrary to our mandatory statute, no copy of the information, or the list of the jurors and witnesses was furnished defendant. On being asked by the court if he was ready to plead to the information, he was then told to listen to the reading of the information and thereupon the deputy district attorney read the first court of the information and asked defendant how did he plead. Defendant replied, “I plead — guilty.” The same procedure occurred on the second count of the information. The court inquired, apparently of the district attorney, “What is the penalty?” After a conference, the court then stated: “The Court desires to inform you before accepting your plea of guilty to the counts of the information, that under the first count you could be sentenced to the penitentiary for a term of not less than one nor more than fourteen years; and under the second count you could be sentenced to a term of not exceeding one year in the County jail. Now, having advised you of the consequences of your pleas of guilty, do you still desire to plead guilty to both counts?”’ The defendant said, “Yes, sir.” The pleas of guilty were received on both counts of the information and witnesses then testified. After the testimony, the court advised defendant that he was entitled to an application for probation after investigation had been made by a probation officer. A probation officer was appointed and the matter continued for a few days.

The record contains the following: “The hearing on the application for probation was held July 14, 1949, at nine o’clock, a. m. at Central City, Colorado. Mr. Gargan called the matter up before the Court for hearing on the matter of the application for probation. Mr. Brumbaugh submitted his report of his investigation. Mr. Fitzpatrick made statements to the Court, and there was a brief discussion between Court and counsel, subsequent to which the Court entered his terms of probation, which have been previously transcribed and filed herein.” Nothing more appears in the record until the motion to vacate the judgment was filed, apparently about March or April of the following year.

Counsel for defendant assign errors, in substance, as follows: That defendant was not provided with a list of jurors or a copy of the information as required by law; that the nature of the serious charges, one of which was a felony charge, was never explained to defendant by the district attorney, nor anyone connected with the proceedings; that defendant was not advised by the court that counsel would be appointed if he desires; that the deputy district attorney acted in a dual capacity by advising and inducing defendant to plead guilty and not to obtain the services of an attorney; and that the evidence adduced at the time of arraignment was not sufficient to sustain the judgment and conviction entered by the court.

It is not disputed that the right to withdraw a plea of guilty is addressed to the sound judicial discretion of the court. It is apparent that the Attorney General, appearing for defendant in error, is not overly enthusiastic in his support of the proceedings surrounding the arraignment of defendant and his probation, but is commendably frank in saying, “that reversal or modification of the judgment in this case rests upon more substantial grounds than are here raised by defendant’s assignments of error.” It is evident that this position of the Attorney General is directed toward the first count of the information and he further states, “There seems to be a complete absence of evidence in the record to sustain the first count. The testimony of the witness DeMerry negatives intent in every respect.” He then supports his conclusion by a narrative statement of the only evidence material to the point: “It shows a fight in which the defendant Champion, the victim Heselbarth, and the witness De-Mery were all engaged. It shows that this fight occurred in an alley back of the Teller House around midnight of July 4, 1949; that the witness knocked the defendant down, and told him ‘Now, stay over away from this until we get this straightened up.’ There was nothing wrong with the cars. It was all a misunderstanding all the way through. In this state of the melee, after being admittedly knocked down by the witness DeMery, the defendant Champion got up and hit the victim Heselbarth. That it was very dark is testified to by the witness DeMery. He says ‘It was too dark to see if he hit him with anything or not.’ We submit that, if it was too dark for the witness, who had just knocked Champion down, to see, it was likewise too dark for Champion to see whether he was striking his assailant, DeMery, or the then bystander, Heselbarth. In order to constitute the crime of assault to commit mayhem, Champion had to make the ‘assault with intent’ to ‘put out an eye’ or voluntarily and of purpose ‘put out an eye or eyes’ of the victim Heselbarth. The evidence negatives this intent.”

I agree with the Attorney General when he states that it is the duty of the court to examine witnesses as to the aggravation and mitigation of the offense, and it is also the duty of the court to reject a plea of guilty when it appears from the evidence that the charge made in the information is not sustained. The taking of the evidence is a statutory safeguard against a miscarriage of justice. I believe that on the fact of the only testimony adduced by the people, the trial court should have realized that it was insufficient to definitely determine who was the aggressor, and more evidence should have been requested by the court, if available, on this question. As the testimony then stood, it should have been observed by the court that it was wholly lacking in any proof of intent to commit the felony mayhem. Under this state of the record and the facts, the defendant, and regardless of his plea, stands convicted and is under punishment by probation of a crime not shown by the prosecution.

The Attorney General contends, however, that the same testimony which was given by the witness DeMery and which the Attorney General says negatives intent in every respect, does sustain defendant’s plea of guilty to the second count, that of assault and battery. With this contention I do not agree. If the evidence negatives intent to commit the felony in which the lesser offense is included, and is silent as to who was the aggressor, then it could not be determined beyond a reasonable doubt that the defendant did “unlawfully” make an assault; if in self-defense, which cannot be determined from the evidence, defendant was entitled to defend himself by reasonable means. The prosecution did not even show a prima facie case of unlawful assault. As to the contention that fatal irregularities entered into the matter of the arraignment, hearing and probation, fundamental fairness compels me to say that sufficient appears in the record to show that defendant, through ignorance of the enormity of the charge against him, was induced into not asserting and enjoying all of his legal rights. Much had been said to defendant about probation, whether it was according to defendant’s testimony or that of the deputy district attorney. It is unmistakably clear from the evidence and the record that defendant was not furnished with a copy of the information, a list of the jurors, and the witnesses, prior to arraignment. In a felony case, this is mandatory. A reading of the information to the defendant at the time of arraignment does not supplant the requirements of the statute. Section 452, chapter 48, ’35 C.S.A. is as follows: “Copy of indictment and list of jurors and witnesses furnished to accused.-—-Every person charged with murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment, and a list of the jurors and witnesses. In all other cases he or she shall at his or her own request, or at the request of his or her counsel, be furnished with a copy of the indictment, and a list of the jurors and witnesses.”

The intent and purpose of this legislative enactment is obvious on its face and is logically stated in one of our early cases, Minich v. People, 8 Colo. 440, as follows: “It will be observed from the foregoing that the question whether the response of ‘not guilty’ was given by the accused or his attorney is of no importance. And upon examination of the facts above stated it will be seen that the arraignment in this case complied fully with the requirements mentioned except in one particular, i. e., the reading of the indictment. Is this a fatal defect? It is almost superfluous for us to say that the object to be attained by this step in the proceeding is to inform the prisoner of the exact character of the crime with which he stands charged, and for which he is to be tried. At common law the material importance of this proceeding is unquestioned, for it was the only means through which the accused was given by the state a complete description of the offense charged. Section 953 of the General Statutes now, however, expressly provides that before arraignment the prisoner shall be furnished with a copy of the indictment. There can be but one object in the enactment of this provision, and that is to accomplish the very purpose for which the reading of the indictment originally took place. It needs no argument to show that in this respect the latter method is better than the former; that with a copy of the indictment in his possession, to be read and reread by himself and by his counsel, he is more thoroughly advised of the crime charged than he could possibly be in listening to the oral reading thereof by the district attorney. The latter officer might by mistake or through design omit to read or misread material matters therein contained, but when the accused has an exact copy for his own inspection, and that of his attorney, no such mistake or imposition is possible. Thus we see that not only is the statutory provision framed for the purpose of accomplishing the very object designed by the reading, but that it is a decided improvement, so far as the accused is concerned, in this regard. In Illinois, under statutes similar to ours, it is declared that ‘the statutory requirement of furnishing the prisoner with a copy of the indictment is a better means of information to him of the charge than the reading of the indictment to him.’ Fitzpatrick v. People, 98 Ill. 259. And it is substantially held that the reading of the indictment is not essential.” “Such statutes are universally held to be of a mandatory character, so that a failure to furnish a copy of the indictment or information as provided for, unless waived, amounts to reversible error.” 14 Am. Jur. 912, section 206.

It has long been established and accepted as the law that this requirement of .the statute is a privilege which may be waived, and we have held that when such, and similar rights are guaranteed by our Constitution, they may be waived; however, the matter of waiver in such cases must be made intelligently and with full knowledge of the right involved. Virtually all of our cases holding that such rights had been waived were on an entirely different factual basis than in the case at bar— usually where the defendant had the benefit of counsel at the time of arraignment and proceeded to trial. In. the instant case we must, under the circumstances surrounding the arraignment of defendant, indulge a presumption against waiver. The basis of this theory, already accepted as the law, is forcibly expressed by the United States Supreme Court in the case of Johnson v. Zerbst, 304 U.S. 458, as follows: “There is insistence here that petitioner waived this constitutional right. The District Court did not so find. It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescense in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

❖ * *

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”

Due to the interest of the public in the life and liberty of its citizens charged with crime, such liberty cannot lawfully be taken except in the manner our legislature has wisely seen fit to prescribe. Here, our statute has made the furnishing of the copy of the indictment to the accused before arraignment essential and mandatory and this cannot be dispensed with or foreclosed by the failure of defendant to object to the procedure due to ignorance or unfamiliarity with legal procedure, and more particularly if he has been lulled into a failure to employ counsel or to plead guilty to charges, the seriousness of which is unknown and unexplained to him.

It may be said that this case can rest squarely on the question of abuse of discretion by the trial court and other questions do not need discussion. That viewpoint is good so far as it goes, but it was necessary to discuss certain points pr errors alleged before it can be determined whether the discretion was abused or not and for that reason, and for future guidance, the lengthy discussion herein has been indulged.

If, as defendant and his mother said, defendant was advised by the deputy district attorney not to get counsel, and that he would be given probation, if true, such action on the part of the prosecution is to be condemned. If there was sufficient said in this connection to lull defendant into a belief that probation, something which he did not understand, would end it all, then a plea of guilty under a charge that he did not understand and made without cautioning that he was entitled to representation by counsel so vitiates the judgment that it cannot be allowed to stand. Customary wholesome procedure suggests that in such instances it is the duty of the trial court to ascertain the facts surrounding defendant’s right of protection and the same be safeguarded by counsel unless expressly rejected by the defendant. Defendant testified at the hearing of the motion to vacate the judgment, that the. nature of the charges were never explained to him and that he did not know or understand the meaning of either of the charges, but that on the assurance of probation, which he did not understand, and in the belief that that was a term used in ending it all, he entered the.pleas of which he now complains.

The Attorney General suggests that the matter of a reparation which entered into the probation proceedings should receive our consideration and summarizes the scanty record on that phase of the case as follows: ‘‘From this portion of the record, it is evident that the victim, Heselbarth, was demanding $600.00 in settlement of his damages, and that his demands were lifted into' and made a part of the probation conditions. This being so, a failure to pay the $600.00 damages would be a violation of the probation agreement, and would thus subject the defendant to the revocation of his probation, and to then be sentenced to the penitentiary for not less than one year nor more than fourteen years.”

As hereinbefore stated, the terms of the probation are not before us and not one word in the record, if such a record was made, as to what transpired at the time of the granting of the probation. A narrative thereof shows that counsel for the victim appeared at the proceedings. It is true the probation statute provides that the court shall require the defendant to make restitution or reparation for actual damages or loss caused by the offense for which the conviction was had upon such reasonable terms as the court may impose, to be paid while on probation. The defendant is entitled to probation or refusal thereof, upon his record and other conditions, and if so entitled, probation is not to be given or denied upon any consideration involving a demand for undetermined compensatory damage.

According to the views herein expressed, the order herein must necessarily go beyond the judgment denying the motion to vacate and change the pleas of guilty and must reach into the very basis of the entire matter now before the court, that is, the pleas, the arraignment, and the probation, because it appears that the negligence of defendant, if it can be so-called, was, and is, attributable to the activities of the deputy district attorney and the oversight of the trial court.

The judgment should be reversed and the cause remanded with direction that defendant be granted leave to withdraw the pleas of guilty entered on both counts of the information and grant his request to enter a plea of not guilty to both counts and be granted a jury trial if so requested.