Turner v. State , 121 Miss. 68 ( 1919 )

Ethridge, J.,

delivered the opinion of the court.

George Turner, the appellant, was indicted in the circuit court of Simpson county for an assault with in-ten to kill and murder one Lawrence Buchanan, and was arrested on said charges and entered a plea of guilty thereto, and was sentenced to serve a term of ten years in the state penitentiary. Subsequent to entering a plea of guilty the appellant filed his motion to be allowed to withdraw his plea of guilty and enter a plea of “Not guilty,” and to be allowed to have a trial on the merits, alleging in his petition that he was an ignorant negro and did not know and was not advised of his legal rights at the time he entered the plea of guilty; that he was not guilty of the crime charged in the indictment and on a hearing of this cause on its merits would disclose this fact to the court and jury; that, being ignorant of his legal rights, he was advised, and relied upon the said advice, that it would be best to enter a plea of guilty as charged; that in the shooting a white man of high standing is alleged to have been shot by the defendant, and at the time of entering said plea of guilty defendant was in great fear that if he did not enter a plea of guilty lie would be killed, or that great bodily harm would be done him; that said plea of guilty was made at a time when he was in great fear of mob violence against him, same having been threatened, and defendant having been placed in jail at Jackson, •Miss., to prevent mob violence, as the defendant believed and understood; that at the time said bill was entered defendant was away from both white and colored friends and had no lawyer or white man to advise him of his legal rights and since he was advised of his legal rights he began then and there to arrange to present this motion to the court to be allowed to have a hearing on the merits, knowing that he is not guilty of the charge alleged; that the defendant did not know and was not advised that the shooting .of a human being was under any circumstances justifiable under the law; that he did not know that he had a right under the law to shoot a man for his own self-preservation, and if he had known that this right was with him under the law that he would have entered a plea of not guilty; that defendant sought advice of his rights, but, being incarcerated in jail, his opportunity was very limited, and those to whom he did speak informed him that it took money to get advice, and, being without money or means to obtain legal advice, when called upon to answer said charge, that he did not know at the time he entered the plea of guilty what' said plea meant, but entered said plea, expecting to be put on trial for the crime alleged until he was otherwise advised by counsel whom his friends employed for him; that the application for a trial on the merits is not made for delay, nor to experiment with the court, but that justice may be done; that if defendant’s motion is granted and he is allowed a trial on the merits of the cause, he will endeavor to make ready for trial during the present term of the court, which he believes can be done. The motion was sworn to by the appellant, but no proof was offered on the hearing by either the applicant or by the district attorney, but the trial court overruled the motion, and the order overruling the motion embodied the following statement:

‘ ‘ The court having heard the same, it is ordered that said motion be, and the same is hereby, overruled, because at the time the defendant was arraigned and pleaded guilty to said charge he pleads guilty, having opportunity to have a fair trial, and, further, because the defendant 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 he was guilty without a mitigating circumstance,”— to which action of the court the defendant excepts in overruling the motion.

It is contended by the appellant that, inasmuch as the petition was sworn to, and that no counter affidavit ivas- filed by the district attorney, the trial judge abused his discretion in refusing to set aside the plea of guilty and permit a trial on the merits.

It will be noted that the application to set aside the plea of guilty does not state the facts showing a meritorious defense, nor what proof the appellant could introduce to make out a cause of justification; the applicant merely saying that he is not guilty. Where a plea of guilty is entered and is afterwards sought to bo set aside, the applicant should at least state the substance of his defense, so that the court may judge of the merits. 17 Am. & Eng. Ency Law, 846. However, we see from the statement of the judge that when the defendant entered a plea of guilty he was permitted to make a statement to the court of the facts, and from such statement made, the judge states there is no mitigating circumstance or moritorious defense. It is argued that the judge’s statement at most amounts to'mere opinion, and should not be considered as it is claimed to be no part of the judgment: In Gurley v. State, 101 Miss. 190, 57 So. 565, this court said:

“The supreme court on appeal must accept as true the statement of the trial court of its recollection of the proceedings sought to be reviewed.”

This statement may be too broad under a possible case, but it certainly is true that the judge’s statements must be accepted as true as against a mere ex parte affidavit, especially where the statements made by the judge are not directly contradicted. The circuit judge must be held to be impartial and unprejudiced in the absence of an express showing that he is otherwise. It seems to us that, if the appellant was not satisfied with the correctness of the facts stated in the judgment, he should have tendered a bill of exceptions to the judge, and if the judge refuses to sign the bill of exceptions, it should be presented to and signed by two reputable attorneys, as provided by statute in cases where the judge refuses to sign a bill of exceptions. Where fhe defendant on entering a plea of guilty states his version of the facts, and if those do not constitute justification or excuse, it would be improper to set aside a plea, unless it clearly appeared that such statements were made under duress or mistake or other cause that would satisfy the trial court that the statement made on entering the plea was untrue. We are unable to say that the trial judge abused his discretion; and reaching this conclusion makes it unnecessary for us to decide now whether or not an appeal would lie from a plea of guilty under the provisions of chapter 151, Laws of 1914, on an application of the kind now before us.

The judgment is affirmed.

Affirmed.

Holden, J., dissents.